COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Owusu, 2021 ONCA 417

DATE: 20210614

DOCKET: C63079

Simmons, Gillese and Huscroft
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Folorunsu Owusu

Appellant

Mark Halfyard and Chris Rudnicki, for
    the appellant

Craig Harper, for the respondent

Heard: May 26, 2021 by video
    conference

On appeal from the sentence imposed on December
    7, 2016 by Justice Ian V.B. Nordheimer of the Superior Court of Justice, with
    reasons reported at 2016 ONSC 7654.

REASONS FOR DECISION

[1]

The appellant was convicted of two counts of
    second degree murder, one count of attempted murder, one count of aggravated
    assault, and one count of reckless discharge of a firearm. The offences arose from
    a mass shooting in Toronto on July 16, 2012, that began when he opened fire at
    a party.

[2]

The appellant had decided to attend the party
    despite his knowledge that he was not welcome. He brought a loaded firearm.

[3]

The appellant was ordered to leave the party by
    a man named Gifted, one of the party organizers. Gifted drew his own firearm,
    but was persuaded to put it away because he was told there were children around.
    When he did, the appellant pulled his gun and began shooting. Two of his shots
    hit Gifted, who returned fire. An unknown man associated with Gifted then
    produced a submachine gun and opened fire.

[4]

Two people were killed and more than twenty were
    injured, including a twenty-two-month-old child. It was the worst mass shooting
    in Torontos history. The appellant, who was 17 years old at the time, did not
    fire the shots that resulted in the deaths, but was convicted of murder under
    s. 229(c) of the
Criminal Code
,
    R.S.C., 1985, c. C-46,
because he initiated the gunfire and knew that
    it would likely cause death.

[5]

The appellant seeks leave to appeal from the
    decision of the sentencing judge granting the Crowns application to impose an
    adult sentence on him. The appellants primary argument is that the sentencing
    judge erred in imposing an adult sentence because he misunderstood the
    Intensive Rehabilitative Custody and Supervision (IRCS) program and, as a result,
    concluded that it would not be effective in his circumstances. The appellant
    argues, further, that the sentencing judge failed to consider the collateral
    immigration consequences of an adult sentence. The appellant brings a fresh
    evidence application for this courts use in the event this court finds an
    error affecting sentence and must sentence him anew.

[6]

For the reasons that follow, the fresh evidence application
    is dismissed. Leave to appeal sentence is granted, but the appeal is dismissed.

The sentencing judges decision

[7]

The appellant was sentenced in accordance with
    s. 72(1) of the
Youth Criminal Justice Act
, S.C. 2002, c. 1 (
YCJA
),
    as it existed at the time of the offences. As this court explained in
R. v.
    M.W.
,
2017 ONCA 22, 134
    O.R. (3d) 1, at para. 23, nothing turns on this: under the version of s. 72(1)
    then in force, the Crown was required to satisfy the court that the presumption
    of diminished moral blameworthiness had been rebutted and that a youth sentence
    would not be of a sufficient length to hold the young person accountable, just
    as under the current version.

[8]

The sentencing judge was required to consider
    three factors set out under s. 72(1): the seriousness and circumstances of the
    offence; the age, maturity, character, background and previous record of the
    young person; and, any other factors that the court considered relevant.

[9]

Concerning the seriousness and circumstances of
    the offence, the sentencing judge found that the appellant started the gunfight.
    He attended a party in an area of Scarborough where he knew he might not be
    welcome and took a handgun with him for that reason. He decided to produce his
    handgun when he was ordered to leave the party and to fire it while amongst a
    crowd. The sentencing judge described this conduct as alarming and horrific,
    compounded by the appellants knowledge or foresight that others would return
    fire with their own guns. Two people were killed as a result of the gunfire and
    many suffered life altering injuries.

[10]

As to the second factor  the age, maturity,
    character, background and previous record of the appellant  the sentencing
    judge found that the appellant:

·

was 17 years old when the offences occurred,
    approximately seven months from his eighteenth birthday;

·

was almost 22 years old at time of sentencing;

·

was expelled from high school in grade 11, but
    completed his Ontario Secondary School Diploma while incarcerated;

·

began to use marijuana as a teenager and sold
    cocaine and marijuana;

·

had been found guilty of assault, theft under,
    possession of cocaine and failure to comply with a recognizance, none of which
    resulted in incarceration;

·

displayed good behaviour while in custody;

·

was given psychological treatment and testing
    and found to be a medium risk of re-offending;

·

denied that he shot Gifted; and

·

had a generally positive pre-sentence report.

[11]

The sentencing judge noted that the appellant
    was found to be a suitable candidate for an IRCS order under s. 42(2)(r)(iii)
    of the
YCJA
but found that the value of such an order for the
    appellant was debatable. In particular, he noted that if a youth sentence were
    coupled with an IRCS order its effectiveness would be hampered because the
    appellant would be required to serve his custodial sentence in an adult provincial
    facility pursuant to s. 89 of the
YCJA
,
and would lose IRCS
    funding/programming if an order were made requiring him to serve his sentence
    in a federal penitentiary. If the appellant were not sent to a federal
    penitentiary, the sentencing judge considered it unclear how well provincial institutions
    could deal with young persons subject to an IRCS order. He concluded: I do not
    find the fact that the [appellant] qualifies for an IRCS order greatly
    influences the conclusion whether a youth or an adult sentence is appropriate.

[12]

The sentencing judge added that the appellants progress
    while in custody was the result of the structure and support that youth
    detention facilities had provided. The future was much less clear in the
    absence of this structure. The sentencing judge was concerned that the
    appellant had not acknowledged his central role in the shootings; on the
    contrary, he maintained that he was not responsible for firing the shots that
    started the gunfight. This, the sentencing judge stated, was of significance
    coupled with the fact that the appellant remained at medium risk of
    re-offending.

[13]

The sentencing judge rejected counsels
    characterization of the appellants actions as impulsive or spontaneous,
    describing them instead as reflecting a conscious understanding of the problems
    his attendance at the party might pose, and his choice of how to deal with
    those problems. The sentencing judge stated that the appellants decision to
    draw and fire his gun was the antithesis of spontaneity. At the time of the
    gunfight, the appellant was on bail on charges of robbery and failure to appear.
    Under the bail conditions, he was not to possess firearms and was subject to a
    10:00 p.m. curfew. His decision to attend the party in breach of these bail terms,
    with knowledge of the problems that might arise, was conscious and
    deliberate.

[14]

On the third factor, which requires
    consideration of any other factors the court considers relevant, the sentencing
    judge addressed the interests of society and in particular the protection of
    the public, which he found must be balanced against the interests of young
    persons in rehabilitation and reintegration. The sentencing judge noted that if
    the appellant received the maximum youth sentence of seven years for second
    degree murder, pursuant to s. 42(2)(q)(ii) of the
YCJA
, he would be
    released from custody in four years. If he were to receive the maximum
    community supervision period of three years, he would be free of all
    supervision by approximately age 28. If, on the other hand, the appellant were
    to receive an adult sentence he would receive life imprisonment with a seven-year
    period of parole ineligibility. Because adult parole ineligibility runs from
    the date of detention, the appellant would be eligible for parole under an
    adult sentence one year before he would be released from prison to community
    supervision under a maximum youth sentence. An adult sentence therefore would
    not necessarily treat the appellant more harshly than a youth sentence. The
    primary benefit of an adult sentence would be the structure it would create for
    continued monitoring of the appellants conduct.

[15]

The sentencing judge concluded that the
    seriousness and circumstances of the offence clearly favoured the imposition of
    an adult sentence, while the appellants age, maturity, character, background
    and previous record supported the imposition of a youth sentence. The
    sentencing judge recognized that the appellant had made significant progress
    while in the youth system but expressed the concern that the principal benefits
    of the youth system would be lost even if a youth sentence were imposed because
    the appellant would have to be transferred to an adult facility. The sentencing
    judge reiterated the problems he perceived with an IRCS order in the
    appellants case. Finally, the sentencing judge concluded that the appellants
    offences were horrendous and instilled fear in the public, and that
    accountability, which equates to retribution, required a punishment that
    properly reflected the moral culpability of the appellant.

[16]

Balancing all of these factors, the sentencing
    judge concluded that the presumption of diminished moral blameworthiness had
    been rebutted and that the only sentence that would hold the appellant
    accountable was an adult sentence. It was also the only sentence commensurate
    with the damage that had been done, and the only sentence that would provide
    for the ongoing supervision of the appellant he considered necessary. He
    sentenced the appellant to life imprisonment with no parole eligibility for a
    period of seven years, concurrent on both counts of second degree murder, and to
    three years, concurrent, on the count of attempted murder. The appellant was
    credited with four years pre-trial custody and was sentenced to time served on
    the counts of aggravated assault and reckless discharge of a firearm.

The alleged IRCS error

[17]

The focus of the appellants submissions was the
    sentencing judges analysis of the suitability of an IRCS order, which the
    sentencing judge properly considered in the context of assessing
    accountability. The appellant argues that the sentencing judge committed the
    error recognized by this court in
M.W.

Specifically, the
    sentencing judge erred in concluding that the value of an IRCS order was
    debatable because the appellant would serve his sentence in an adult
    institution, and as a result would lose the supports that made the IRCS program
    effective.

[18]

In
M.W.
,
the sentencing judge
    imposed an adult sentence because, among other reasons, he was concerned that
    the appellants would be transferred to a federal institution where the funding
    for their IRCS orders would cease. This court held that the sentencing judges
    speculation was an error: s. 93(1) of the
YCJA
requires young persons
    serving a youth sentence to be transferred to a provincial correctional
    facility once they reach age 20, unless transfer to the federal system is
    warranted in the best interests of the young person or the public. There had
    been no suggestion that the appellants would be transferred to a federal
    institution.

[19]

The appellant submits that the decision in
M.W.
is dispositive of this appeal. He says that there is no evidence that he could
    not be managed effectively by a seven-year IRCS order or that a life sentence
    under the supervision of the Parole Board of Canada would provide better
    support.

[20]

We do not agree. The appellant was 21 years old
    when he was sentenced and, pursuant to s. 89(1) of the
YCJA,
was
    required to serve his sentence in an adult facility. (That the appellant
    appears to have remained in a youth facility beyond age 21 is not significant
    for purposes of the sentencing judges analysis.) Unlike in
M.W.
, the
    sentencing judge was concerned with the implications flowing from the appellant
    serving his sentence in an adult facility, regardless of whether that facility
    was provincial or federal. As he put it, [i]t is quite apparent that the adult
    system is simply not set up to accommodate young persons, who are required to
    serve a sentence in an adult facility, but for whom it is desirable that they
    received the type of attention, and the type of programming, that is available
    in the youth system.

[21]

The sentencing judges concerns about the
    suitability of the IRCS program for the appellant were based on more than
    simply where the sentence would be served and the risk of transfer to a federal
    facility. He was also concerned that the appellant had not acknowledged
    responsibility for the offences, a key consideration in the accountability
    analysis. Finally, as the Crown notes, other errors found in
M.W.

did
    not occur in this case, including unjustified concern in enforcement of the
    IRCS program and an erroneous belief that actual credit had to be given for
    pre-sentence custody when imposing a youth sentence.

[22]

However, even assuming that the sentencing judge
    erred concerning the value of an IRCS order, there is no basis for this court
    to intervene. Errors in the reasoning process do not justify intervention on
    appeal
per se
; any error must have had an impact on the sentence
    imposed. In the absence of an error that impacted the sentence, there is no
    basis to intervene unless a sentence is demonstrably unfit:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089,
at
    para. 11.

[23]

In this case, the appellants eligibility for an
    IRCS order was simply one consideration relevant to the question of
    accountability. As the sentencing judge stated: I do not find the fact that
    the [appellant] qualifies for an IRCS order greatly influences the conclusion
    whether a youth or an adult sentence is appropriate. Put another way, the appellants
    sentence would have been the same regardless of the alleged error concerning
    the IRCS program. Rehabilitation was only one factor relevant to the question
    of accountability and was not determinative of the matter. The sentencing judge
    properly recognized that the central question he had to determine was whether
    or not a youth sentence would have sufficient length to hold the appellant
    accountable for his offending behaviour, and he found that it would not. This
    finding was open to the judge and is entitled to deference.

[24]

The alleged error concerning the IRCS program did
    not have an impact on the sentencing judges conclusion that the Crown had
    rebutted the presumption of reduced moral culpability. It was irrelevant to
    that issue:
M.W.
, at para. 107. The sentencing judge rejected the
    appellants characterization of his conduct as impulsive. On the contrary, he
    found that the appellants decisions reflected a conscious understanding of
    the potential for problems associated with his attendance, and his choice as to
    the manner in which he was going to be able to respond to those problems. He
    noted that there was no evidence that the appellant was suffering from a mental
    illness or disability at the time of the events that would have impaired his ability
    to understand the moral impact of his actions. The sentencing judge noted,
    further, that the appellant was on bail on charges of robbery and failure to
    appear and was in breach of both a weapons ban and a curfew order when he
    committed the offences.

[25]

The sentencing judges characterization of the
    appellants actions as conscious and deliberate is amply supported on the
    record. He considered the age, maturity, and the conduct of the appellant both
    before and after the offence  his improvement in custody as well as the medium
    risk of re-offending that he posed  and concluded that the presumption of
    diminished moral blameworthiness had been rebutted. This conclusion reveals no
    error and is entitled to deference.

[26]

In summary, there is no basis to interfere with
    the sentencing judges conclusions that the Crown had rebutted the presumption
    of reduced moral culpability; that only an adult sentence would hold the
    appellant accountable for his role in the events that led to two murders and more
    than 20 people being injured; that only an adult sentence was commensurate with
    the damage that was done; and, that only an adult sentence would provide for
    the ongoing supervision of the appellant he found necessary. This ground of
    appeal must be rejected.

The collateral immigration consequences

[27]

The appellant submits that the trial judge
    failed to take into account the immigration consequences that would result from
    the imposition of an adult sentence. The appellant says that he is a permanent
    resident but not a citizen of Canada and would be subject to a removal order
    unless sentenced to a youth sentence under the
YCJA
.

[28]

The immigration consequences of an adult
    sentence were the subject of brief submissions from trial counsel but were not
    addressed by the sentencing judge in his decision. The sentencing judge should
    have addressed the matter, but his failure to do so was harmless in the
    circumstances.

[29]

Section 718.1 of the
Criminal Code
codifies proportionality as the fundamental principle of sentencing in the
    adult context. Collateral consequences are not to be applied in a manner that
    undermines that principle. As the Supreme Court of Canada has emphasized,
    collateral consequences cannot be used to reduce a sentence to a point where
    the sentence becomes disproportionate to the gravity of the offence or the
    moral blameworthiness of the offender:
R. v. Suter
, 2018 SCC 34, [2018] 2 S.C.R. 496,

at
    para. 56.

[30]

The appellant caused the largest mass shooting
    in Torontos history. The sentencing judge concluded an adult sentence was
    required because he was satisfied that a youth sentence would not have
    sufficient length to hold [the appellant] accountable for his offending
    behaviour in accordance with the purpose and principles set out in
    subparagraph 3(1)(b)(ii) and s. 38 of the
YCJA
. The collateral
    immigration consequences could not have reduced the sentence to a youth
    sentence.

[31]

This ground of appeal must be rejected.

The fresh evidence

[32]

As we have not found an error requiring that we
    sentence the appellant anew, the application to admit fresh evidence is
    dismissed.

Conclusion

[33]

Leave to appeal sentence is granted, but the
    appeal is dismissed.

Janet Simmons J.A.

E.E. Gillese
    J.A.

Grant Huscroft
    J.A.


WARNING

The President
of the panel hearing this appeal directs that the following should be attached
to the file:

An order restricting publication in this
proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
of the
Criminal Code
shall continue.  These sections of
the
Criminal Code
provide:

486.4(1)       Subject to subsection
(2), the presiding judge or justice may make an order directing that any
information that could identify the victim or a witness shall not be published
in any document or broadcast or transmitted in any way, in proceedings in
respect of

(a)     any of the following
offences;

(i)      an
offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01,
279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any
offence under this Act, as it read at any time before the day on which this
subparagraph comes into force, if the conduct alleged involves a violation of
the complainants sexual integrity and that conduct would be an offence
referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt with in
the same proceeding, at least one of which is an offence referred to in
paragraph (a).

(2)     In proceedings in respect of
the offences referred to in paragraph (1)(a) or (b), the presiding judge or
justice shall

(a)     at the first reasonable
opportunity, inform any witness under the age of eighteen years and the victim
of the right to make an application for the order; and

(b)     on application made by
the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2),
in proceedings in respect of an offence other than an offence referred to in
subsection (1), if the victim is under the age of 18 years, the presiding judge
or justice may make an order directing that any information that could identify
the victim shall not be published in any document or broadcast or transmitted
in any way.

(2.2) In proceedings in respect of
an offence other than an offence referred to in subsection (1), if the victim
is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform
the victim of their right to make an application for the order; and

(b) on application of the victim
or the prosecutor, make the order.

(3)     In proceedings in respect of
an offence under section 163.1, a judge or justice shall make an order
directing that any information that could identify a witness who is under the
age of eighteen years, or any person who is the subject of a representation,
written material or a recording that constitutes child pornography within the
meaning of that section, shall not be published in any document or broadcast or
transmitted in any way.

(4)     An order made under this
section does not apply in respect of the disclosure of information in the
course of the administration of justice when it is not the purpose of the
disclosure to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43, s.  8(3)(b);
2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.  13,
s. 18.

486.6(1)       Every person who
fails to comply with an order made under subsection 486.4(1), (2) or (3) or
486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an
order referred to in subsection (1) applies to prohibit, in relation to
proceedings taken against any person who fails to comply with the order, the
publication in any document or the broadcasting or transmission in any way of
information that could identify a victim, witness or justice system participant
whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. C.K., 2021 ONCA 420

DATE: 20210614

DOCKET: C66065

Benotto, Trotter and Nordheimer
JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.K.

Appellant

C.K., in person

Richard Litkowski, duty counsel

Manasvin Goswami, for the respondent

Heard: June 9, 2021 by video
conference

On appeal from the sentence imposed on
November 2, 2018 by Justice J. Wright of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

C.K. pleaded guilty to what the trial judge described as a brutal and
savage beating of a female who had come to his home to use drugs. He was
sentenced to six years to be served concurrently on convictions for assault,
assault causing bodily harm, sexual assault and unlawful confinement. He
appeals the sentence and raises two issues.

[2]

First, he submits that the trial judge miscalculated the pre-sentence
custody and consequently, he did not receive the proper credit for time served.
C.K. was in pre-sentence custody from September 12, 2016 until November 2, 2018.
We have calculated that amounts to 781 days. He was given credit for 782 days
at 1:1.5. We see no error in the calculation

[3]

Second, C.K. submits that his sentence should be either stayed or
reduced because of the ten-month delay from conviction to sentence. He relies
on this courts decision in
R. v. Charley
2019
ONCA 726 which set a presumptive ceiling of a five-month delay. We note at the
outset that
Charley
post-dated the sentencing
so that the transitional exceptional circumstances set out in a typical
Jordan
analysis would apply. Here, the guilty plea was
February 1, 2018. Following the plea, the appellant brought an application to
strike the plea. That application was dismissed on May 3, 2018. He was
sentenced on November 2, 2018. Therefore, three months of the ten-month delay
between conviction and sentence was attributable to the appellants application.
The remaining delay related to the fact that the appellant fired his counsel
and obtained the
Gladue
Report. The total delay
in the circumstances is not unreasonable.

[4]

Leave to appeal sentence is allowed, but the sentence
appeal is dismissed.

M.L. Benotto J.A.

Gary Trotter J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bullens, 2021 ONCA 421

DATE: 20210614

DOCKET: C66649

Benotto, Trotter and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ian Bullens

Appellant

Ian Bullens in person

Ingrid Grant, as duty counsel

Philippe Cowle, for the respondent

Heard: June 9, 2021 by video
    conference

On appeal from the sentence imposed on April
    20, 2017 by Justice Alfred OMarra of the Superior Court of Justice.

REASONS FOR DECISION

[1]

At the outset of the hearing, Mr. Bullens
    confirmed that he was not pursuing his conviction appeal. With respect to his
    sentence appeal, the only issue to be addressed is the sentencing judges
    failure to accord Mr. Bullens a credit of 3 to 5 months based on the principle from
R. v. Downes
(2006), 79 O.R. (3d) 321 (C.A.).

[2]

The appellant says that, throughout the period
    he was on bail, he was prevented from seeing his children because they lived in
    a different city. The appellant was restricted by the conditions of his bail to
    his home, except for work or in the presence of his surety, which made
    travelling to see his children impossible. He submits that this impact on him
    warrants a
Downes
credit and the sentencing judge erred in not giving
    him that credit.

[3]

We do not agree. We begin by noting that it does
    not appear that the situation regarding the appellants children was brought to
    the sentencing judges attention. Hence, his reference to the paucity of
    evidence to suggest any significant interference with [the appellants] liberty
    while on bail.

[4]

In any event, there is always a measure of
    interference with a persons liberty interests that arises from being on bail.
    That is why the issue of giving credit for such conditions is generally
    reserved for situations where the bail conditions are stringent. It follows
    from that fact, as noted in
Downes
(at para. 33), that the
    circumstances may dictate that little or no credit should be given for
    pre-sentence house arrest.

[5]

There was no error in principle arising from the
    sentencing judges determination that no credit should be given to the
    appellant arising from his bail conditions. There is, consequently, no basis
    upon which this court can properly interfere with that decision.

[6]

The conviction appeal is dismissed as abandoned.
    Leave to appeal sentence is granted but the appeal is dismissed.

M.L.
    Benotto J.A.

Gary
    Trotter J.A.

I.V.B.
    Nordheimer J.A.


WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4(1)       Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)     any of the
    following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings
    in respect of the offences referred to in paragraph (1)(a) or (b), the
    presiding judge or justice shall

(a)     at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the victim of the right to make an application for the order; and

(b)     on application
    made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, make the order.

(3)     In proceedings
    in respect of an offence under section 163.1, a judge or justice shall make an
    order directing that any information that could identify a witness who is under
    the age of eighteen years, or any person who is the subject of a
    representation, written material or a recording that constitutes child
    pornography within the meaning of that section, shall not be published in any
    document or broadcast or transmitted in any way.

(4)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b);
    2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s.
    18.

486.6(1)       Every
    person who fails to comply with an order made under subsection 486.4(1), (2) or
    (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater
    certainty, an order referred to in subsection (1) applies to prohibit, in
    relation to proceedings taken against any person who fails to comply with the
    order, the publication in any document or the broadcasting or transmission in any
    way of information that could identify a victim, witness or justice system
    participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. W.E.G., 2021 ONCA 365

DATE: 20210531

DOCKET: C65992

Fairburn A.C.J.O., Watt and
    Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

W.E.G.

Appellant

Margaret Bojanowska, for the appellant

Elena Middelkamp, for the respondent

Heard: January 28, 2021 by
    video conference

On appeal from the convictions entered by
    Justice Nancy J. Spies of the Superior Court of Justice, sitting with a jury, on
    June 26, 2018, and from the sentence imposed on October 22, 2018, with reasons
    reported at 2018 ONSC 6246.

Fairburn A.C.J.O.:

A.

Overview

[1]

The appellant was convicted of sexual assault,
    uttering a threat to cause death, and two counts of assault against the
    complainant, with whom he was in a domestic relationship. He appeals from those
    convictions.

[2]

This was a two-witness jury trial: the
    complainant testifying for the Crown and the appellant testifying in his own
    defence. Credibility was the sole issue at trial. If the complainant was
    telling the truth, she was the victim of a serious sexual assault at the hands
    of the appellant, as well as multiple assaults and a threat to cause death. The
    appellant denied everything. He said that the complainant had fabricated the
    allegations because she wanted to obtain sole custody of their child and
    because she thought that her chances of obtaining immigration status would be
    improved if she made the false allegations.

[3]

The appellant raises four grounds of appeal:

(1)

the application
    judge, who was not the trial judge, erred in dismissing the appellants
    third-party records application on the basis that the records were not likely
    relevant;

(2)

the trial
    judge erred in failing to instruct the jury on the permitted and prohibited
    uses of the complainants prior consistent statements;

(3)

the trial
    judge erred in failing to adequately instruct the jury on issues of credibility;
    and

(4)

the trial
    judge erred in failing to provide an adequate corrective instruction to the
    jury respecting improper aspects of the trial Crowns submissions.

[4]

In my view, the appeal must be allowed on the prior
    consistent statements issue. In light of that result, with one exception, there
    is no need to address the other grounds of appeal. The exception relates to the
    third-party records issue. As this issue may arise again at the new trial, for the
    sake of efficiency, I will explain in these reasons why the application judge
    did not err in her analysis.

B.

The Prior Consistent StatementS Issue

(1)

Background Information

[5]

The complainant and the appellant met in March
    2012. After a few dates, the complainant moved in with the appellant, who
    resided in his parents home. Not long after moving in together, the
    complainant became pregnant. While she testified that everything was good at
    the beginning of their relationship, she said that this all changed when she
    was one to three months pregnant. By then, the appellant began to verbally
    abuse the complainant.

[6]

Once their child was born, the verbal aggression
    escalated to physical assaults. This abuse continued over the course of their
    three-year relationship. The complainant testified that the appellant would
    yell at her, insult her, and strike her. She testified that on one occasion,
    the appellant threatened her with death, and on another occasion, he sexually
    assaulted her.

[7]

The appellant challenged the complainants evidence
    on the basis of alleged inconsistencies between her trial testimony and things
    she had previously said in: (1) a statement she had given to the police; (2)
    her testimony at the preliminary inquiry; and (3) a document she had filed in
    the context of a family court proceeding. Many of the alleged prior inconsistent
    statements were put to the complainant during cross-examination by the defence
    counsel.

[8]

In an effort to rehabilitate the complainant
    during re-examination, the trial Crown took her to different parts of the same
    three prior statements, drawing her attention to things that she had
    purportedly said to others and things she had re-enacted for the police
    (collectively referred to in these reasons as the prior consistent
    statements), all of which the trial Crown maintained were consistent with her
    trial testimony. As these prior consistent statements lay at the core of the
    appellants complaint about the jury charge, a few examples are offered in the
    following paragraphs.

(a)

The Choking
    Incident

[9]

In her examination-in-chief, the complainant
    testified about having been choked by the appellant in their bedroom. She
    testified that once the appellant grabbed her by the neck, she stood up from
    the bed and he leaned her against the wall. During cross-examination, the defence
    counsel confronted the complainant with a transcript excerpt from her police
    statement, suggesting that she had previously told the police that the choking
    incident took place while she was seated on the bed with her back against the
    wall.

[10]

In re-examination, the trial Crown read out from
    the transcripts of the police statement and the preliminary inquiry and played
    a portion of the complainants videotaped police statement. These were said to
    be the complainants prior consistent statements relating to the choking
    incident. By way of example, during re-examination, the trial Crown played a
    44-second video clip of the police statement, involving the complainant acting
    out the alleged choking incident, a re-enactment that showed the complainant in
    a standing position.

(b)

The Assaults in
    Bed

[11]

During cross-examination, the defence counsel
    suggested that there was an inconsistency between the complainants trial
    testimony and her prior statements regarding the alleged assaults that took
    place in bed. Specifically, the defence counsel said that the complainants
    police statement did not refer to the appellant punching the complainant in the
    leg.

[12]

The trial Crown attempted to rehabilitate the
    complainant on this point in re-examination by playing a 1 minute and 22 second
    portion of the video from the police statement, showing another re-enactment
    for the police, with the complainant demonstrating two different gestures. The
    trial Crown suggested to the jury that the complainants video re-enactment was
    consistent with the complainants testimony at trial.

(c)

Whether the
    Appellants Family Intervened

[13]

During cross-examination, the complainant
    testified that while the appellants family never witnessed any of the alleged
    assaults, they would come to her defence when the appellant became verbally
    aggressive.

[14]

The complainant was then confronted with passages
    from a document that she had filed in a family court proceeding involving the
    custody of the complainant and appellants child. This document was said to
    reflect inconsistencies between what the complainant testified to at trial and
    what she said in the family court proceeding about the appellants familys
    response to his abusive behaviour. Specifically, the document referenced the
    fact that she had no trust in the
[appellants]
family, as they did not try to stop the
[appellants]
abusive behaviour. The complainant attempted to explain that the
    family court document was referring to abusive conduct other than the abusive
    conduct forming the subject of the trial.

[15]

In re-examination, the trial Crown read the same
    passages from the family court document aloud. One of those passages follows:

During the time living together, the [appellant]
    verbally, physically and sexually abused her. Besides using derogative and
    profane language at her, he also made death threats towards her. He physically
    pushed her. He physically hit her and pushed her . He acted violently and
    aggressively in front of the child. The child witnessed this abusive behaviour.

[16]

After reading from the document, the trial Crown
    attempted to explore with the complainant what the other abusive behaviour
    was that she had referred to during cross-examination. The trial judge
    intervened to stop the complainant from answering the question, the
    re-examination came to an end, and the complainant left the witness stand.

[17]

The trial judge then gave the jury a mid-trial
    instruction about how to approach prior inconsistent statements. The content of
    this mid-trial instruction will be discussed shortly. Following the mid-trial
    instruction, the trial Crown closed the prosecutions case, the defence counsel
    provided an opening address, and the appellant testified.

(d)

The Positions of the Parties

[18]

The appellant argues that the trial judge
    committed a reversible error by failing to instruct the jury on the permitted and
    prohibited uses of the complainants prior consistent statements. While the
    respondent agrees that there was an absence of a limiting instruction in the
    jury charge, and that as a general rule an instruction should be given, the
    respondent points to a number of factors that demonstrate that the absence of
    the instruction in this case did not constitute a reversible error.
    Respectfully, I do not accept that the matter is as benign as the respondent
    suggests.

(2)

The Governing Principles

[19]

A lie can be repeated just as easily as the
    truth. Accordingly, the fact that a complainant says something prior to trial
    that is consistent with what that complainant testifies to at trial does not
    make that complainants evidence more likely to be true. This is why prior
    consistent statements are generally inadmissible at trial.

[20]

Like most rules of evidence, there are notable
    exceptions. Some exceptions relate to where the prior consistent statements
    properly form the subject of narrative, serve to rebut allegations of recent
    fabrication, and serve to refute alleged prior inconsistent statements: see
R.
    v. M.P.
, 2018 ONCA 608, 363 C.C.C. (3d) 61, at paras. 77-78;
R. v. M.A.J.
,
    2015 ONCA 725, 329 C.C.C. (3d) 149, at paras. 45-47.

[21]

When prior consistent statements properly form
    part of the trial record, the trial judge is generally required to instruct the
    jury on both the permitted and prohibited uses of those prior consistent
    statements:
M.P.
, at paras. 79-80. The trial judge is required to warn
    the jury that a concocted statement will remain concocted despite the number of
    times that it is repeated. As Watt J.A. puts it in his model jury instruction, Once
    a lie, always a lie: David Watt,
Watts Manual of Criminal Jury
    Instructions
, 2nd ed. (Toronto: Carswell, 2015), at p. 419 (Final 35-D).

[22]

Therefore, the trial judge is generally required
    to inform the jury that what the witness said before the trial about the same
    events described in the witnesss testimony cannot be used as evidence of the
    truth of what was said. It also cannot be used to bolster the witnesss
    credibility. Put a different way, the trial judge should instruct the jury that
    repetition of what is said to have happened does not lend truth to a witnesss
    account. Nor does the repetition act as independent evidence of what occurred. The
    trial judge should also instruct the jury on the limited use that can be made
    of the prior consistent statements, which permitted use will be informed by the
    particular exception that is engaged:
M.P.
, at para. 79.

(3)

The Absence of a Necessary Instruction

[23]

In this case, the trial Crowns purpose for
    taking the complainant through some of her prior consistent statements in
    re-examination, including what were said to be consistent video re-enactments,
    was to endeavour to rehabilitate her following the defence attack on her
    credibility in cross-examination, an attack that was at least partially
    predicated upon prior inconsistent statements. In other words, the prior consistent
    statements were used to rebut the defence assertion that the complainant had
    been inconsistent in her prior statements: see
R. v. L.O.
, 2015 ONCA
    394, 324 C.C.C. (3d) 562, at para. 36.

[24]

The appellant acknowledges that the prior
    consistent statements, including the video re-enactments, were admissible for
    that purpose. Therefore, admissibility is not the issue on appeal. Rather, the
    issue is focused upon the trial judges failure to instruct the jury about the
    limited use they could make of the prior consistent statements and the fact
    that they could not infer that the complainant was telling the truth or that
    the alleged events happened, simply because she had said the same things on
    previous occasions.

(a)

Responding to the Respondents Arguments

[25]

While the respondent fairly acknowledges that
    the prior consistent statement instruction should have been given to the jury
    in this case, the respondent goes on to emphasize that perfection is not the
    standard by which to measure the adequacy of a jury charge. The respondent
    stands on solid ground with this submission.

[26]

Undoubtedly, perfection is not the standard by
    which jury charges should be assessed:
R. v. Araya
, 2015 SCC 11,
[2015] 1 S.C.R. 581,
at para. 39. The task
    of an appellate court is not to ensure that a jury received a perfect
    instruction, but to ensure that the trial judges instructions properly and
    adequately prepared the jury for deliberation:
Araya
, at para. 39;
R.
    v. Barrett
, 2016 ONCA 12, 346 O.A.C. 1, at para. 13. As Moldaver J. said
    in
R. v. Calnen
, 2019 SCC 6,
[2019] 1 S.C.R.
    301,
at para. 8, a functional approach in reviewing a
    jury charge on appeal is required, one that asks whether the jury charge as a
    whole enabled the trier of fact to decide the case according to the law and
    the evidence. See also
R. v. Daley
, 2007 SCC 53,
[2007] 3 S.C.R. 523,
at para. 31.

[27]

In applying a functional approach, the
    respondent encourages this court to rely upon the criteria set out in
M.P.
,
    at para. 80, for assessing the effect of a trial judges failure to properly
    apprise a jury about the limited use to be made of prior consistent statements.
    As noted in
M.P.
, while [e]ach case falls to be decided according to
    its own idiosyncratic facts, there are five relevant considerations to be
    taken into account when determining whether the absence of the instructions
    constitute a reversible error: (1) the nature of the prior consistent
    statements; (2) how many prior consistent statements were introduced or
    repeated; (3) who introduced the evidence; (4) whether the party introducing
    the prior consistent statements relied upon them for an improper purpose; and
    (5) whether there was an objection to either the introduction of the prior
    consistent statements or the failure to provide an instruction to the jury
    limiting their use:
M.P.
, at para. 80.

[28]

The respondent emphasizes that the bulk of the
    evidence involving the complainants prior statements was introduced by the defence
    in an attempt to discredit the complainant by putting alleged prior
    inconsistencies to her in cross-examination. Therefore, the trial Crowns
    references to the prior consistent statements in re-examination were introduced
    and advanced for a proper purpose: to respond to the defence attack on the
    complainants credibility.

[29]

The respondent also points out that the trial
    Crown did not invite the jury to use the prior consistent statements for an
    improper purpose, such as inferring credibility from the complainants consistency.
    Indeed, the trial Crown specifically told the jury in his closing address that
    he was not relying on consistencies between the trial evidence and the prior
    statements for any purpose other than rebutting the suggestion of inconsistencies
    on various material points.

[30]

The respondent also points to the trial judges proper
    jury instructions as they related to what the jury should make of the alleged
    prior inconsistent statements, including that the jury was instructed that
    those prior inconsistent statements could not be used for the truth of their
    contents.

[31]

Finally, the respondent notes the lack of an
    objection at trial by the defence counsel in relation to the absence of any
    instruction to the jury as it related to prior consistent statements.

[32]

A failure to object is a factor on appellate
    review, because it may be indicative of the seriousness of the alleged
    violation, but it is not dispositive of a ground of appeal predicated on an
    erroneous jury charge:
Daley
, at para. 58. See also
Thériault v.
    The Queen
,
[1981] 1 S.C.R. 336,
at pp. 343-44;
Calnen
, at paras. 37-40;
R. v. Jacquard
,
[1997] 1 S.C.R. 314,
at para.
    38. While a failure to object will often be taken as a reflection of the
    overall accuracy of the instructions and the seriousness of the error alleged
    for the first time on appeal, from time-to-time, a failure to object can simply
    constitute a serious oversight on the part of trial counsel.

[33]

In this case, the failure to object to the
    inadequacy of the jury charge as it related to the prior consistent statements appears
    to fall into this latter category.

[34]

In addition to the transcripts of the police
    statement and the preliminary inquiry being read to the complainant in front of
    the jury, the video clips of the complainants police statement, where she re-enacted
    the choking incident and the assaultive behaviour in bed, were played for the
    jury. This all occurred during re-examination. Accordingly, some of the most
    central aspects of the complainants version of events described in her
    examination-in-chief were reinforced through prior consistent statements, which
    were the very last things the jury heard from the complainant right before the
    trial Crown closed the prosecutions case.

[35]

Therefore, while I agree with the respondent
    that the prior consistent statements were only elicited because of the defence
    use of alleged prior inconsistent statements, those statements were the last
    thing that the jury heard during the Crowns case and they went to the heart of
    the allegations. They called out for instructions on their permitted and prohibited
    uses.

[36]

Instead, the only instruction the jury received
    was in relation to the alleged prior inconsistent statements elicited by the
    defence. In my view, that instruction aggravated the error.

(b)

The Impact of the Prior Inconsistent Statements Instructions

[37]

The jury received two instructions regarding the
    proper approach to prior inconsistent statements.

[38]

First, immediately following the complainants
    evidence, and just prior to the trial Crown announcing that the prosecutions
    case was closed, the trial judge provided the jury with a mid-trial instruction
    relating only to the alleged prior inconsistent statements.

[39]

That instruction included the standard direction
    often given to juries when forced to consider allegedly inconsistent statements:
    common sense may suggest that when a person says things at trial that are
    different from what they have said before, this difference may be important in
    deciding whether or how much you believe of or rely upon the witnesss
    testimony. The jury was then told to consider the nature and extent of any differences
    in the statements to decide whether they will believe or rely upon the
    witnesss testimony. Finally, the jury was instructed as follows:

You cannot use the earlier statement as
    evidence of what actually happened, unless you are satisfied that the witness
    accepted it as true while in the witness box in this courtroom.

[40]

Second, during the final jury charge, a whole
    section was devoted to the complainants prior statements, prefaced with the
    heading: Prior Statements of [the complainant] to Police, Her Evidence at the
    Preliminary Inquiry and Her Application to the Family Court. The instructions
    that followed provided a somewhat detailed recounting of both the allegedly
    inconsistent and consistent prior statements, including, but not limited to, a
    suggestion to the jury that they consider what [they] observed when [the trial
    Crown] played those portions of the videotaped interview. The passage from the
    document filed in the family court proceeding cited by the trial Crown at the
    end of re-examination, and set out earlier in these reasons, was also read out
    again in the jury charge.

[41]

The review of the prior statements  both the
    inconsistent and consistent portions of those statements  was followed by a
    legal instruction focused only on how to approach the alleged prior
    inconsistent statements. That instruction loosely tracked the specimen
    instruction provided in
Watts Manual of Criminal Jury Instructions
and,
    to a large extent, repeated the mid-trial jury instruction on prior
    inconsistent statements, as just previously reviewed. The instruction concluded
    with the following legal direction:

Whatever you choose to make of the
    differences, you can only use the evidence given under oath in this trial as
    evidence of what actually happened. You cannot use the earlier statement as
    evidence of what actually happened, unless you are satisfied the witness
    accepted it as true while in the witness box.

[42]

If anything, the mid-trial and final jury instructions
    regarding how to approach the prior inconsistent statements aggravated the
    prejudice arising from the failure to instruct the jury on the permitted and prohibited
    uses of the complainants prior consistent statements.

[43]

In the case of the mid-trial instruction, it
    immediately followed the complainants evidence, where the jury had heard both
    inconsistent and consistent prior statements. In the case of the final jury
    instructions, the legal direction to the jury immediately followed the trial
    judges review of both the consistent and inconsistent statements. Yet, both
    legal instructions only addressed how to approach the alleged prior inconsistent
    statements.

[44]

The instructions relating to the prior inconsistent
    statements, contrasted with the silence relating to the prior consistent
    statements, may well have left the jury with the mistaken impression that they
    could use the consistent statements as they pleased  perhaps as independent
    evidence of the truth of their contents and/or evidence that could serve to bolster
    the complainants credibility. Clearly, neither of these options was available
    to the jury, but they needed to be instructed on that legal rule.

[45]

As well, both the mid-trial and final jury
    instructions contained the following legal direction: You cannot use the
    earlier statement as evidence of what actually happened, unless you are
    satisfied the witness accepted it as true while in the witness box. While
    there is nothing wrong with this instruction when it comes to the prior
    inconsistent statements, the jury may well have been left thinking that they
    could also use the prior consistent statements   which were obviously accepted
    as true by the complainant  as evidence of what actually happened. They
    would have been wrong if they proceeded on that mistaken belief.

[46]

It is true that this court has previously
    dismissed appeals where an instruction relating to prior consistent statements
    has been missed: see
M.P.
, at paras. 84-88;
L.O.
, at para.
    38;
M.A.J.
, at paras. 63-66. However, this case is distinguishable, as
    it turns on its own facts, including the nature of the prior consistent
    statements, the timing of those statements and where they sat in the context of
    the trial as a whole, and the importance of the absent instructions when
    considered against the instructions that were actually provided to the jury
    regarding the prior inconsistent statements.

(c)

Conclusion

[47]

While the respondent is right that the trial Crown
    told the jury that he was not inviting them to infer credibility based on the complainants
    prior consistent statements, and this comment may have helped soften the blow
    arising from the absence of the instruction, the fact remains that the jury was
    left without guidance on how to use this potentially powerful and highly
    problematic evidence.

[48]

Ultimately, this was a two-witness trial where
    credibility lay at the core of what the jury needed to resolve. The complainant
    was the only Crown witness, and her prior statements formed a significant
    portion of both the defence counsels cross-examination and the trial Crowns
    re-examination. On the most central issue at trial, the jury required proper
    instructions. Failing to instruct the jury on the fact that the prior
    consistent statements could not be used as proof of what happened or as
    evidence of credibility ran a significant risk of misuse.

[49]

In the circumstances of this case, the absence
    of an instruction to the jury regarding the permitted and prohibited uses of
    the complainants prior consistent statements constitutes a reversible error.
    Therefore, I would allow the appeal and order a new trial.

C.

Third-Party RecordS Issue

[50]

As I would order a new trial in this matter,
    there is no need to deal with the grounds of appeal pertaining to other alleged
    difficulties with the trial judges instructions to the jury. This comment
    should not be taken as suggesting that those grounds of appeal had any
    traction. However, since the third-party records issue may arise again at a new
    trial, for the sake of efficiency, I will briefly address this issue.

[51]

Prior to his convictions, the appellant brought
    a third-party records application, which was dismissed by Justice Wailan Low on
    June 7, 2018, with reasons dated June 28, 2018.

[52]

The complainant came to Canada from El Salvador
    in 2009. She was eventually denied refugee status, but she continued in her
    efforts to obtain permanent residency in Canada.

[53]

The appellant brought a pre-trial application to
    obtain
[
a
]
ll records in the possession of the
    Immigration and Refugee Board of Canada pertaining to any claim made by
[
the complainant
]
.

[54]

The appellant filed an affidavit from his sister,
    dated May 8, 2018, as evidence on the application. His sister attested to the
    fact that about one month before the complainant went to the police to disclose
    the allegations of abuse, the complainant had told the appellants sister that she
    had been advised by someone else that if she reported that she had been abused
    in Canada, it would improve her chances of staying in the country. The
    appellants sister deposed as follows: I believe that
[the
    complainant]
has fabricated the allegations against
[the appellant]
to obtain some benefit with
    respect to her immigration claim that the application has changed to
    Humanitarian and Compassionate Grounds.

[55]

The application judge dismissed the third-party
    records application, concluding that the appellant has not established that the
    third-party records were likely relevant within the meaning of s. 278.5(1)(b)
    of the
Criminal Code
, R.S.C. 1985, c. C-46.

[56]

The appellant claims that the application judge
    misunderstood the central nature of the application when she found that,
[o]bjectively speaking,
the making of a
    claim of abuse in Canada would not likely have the effect of improving the
    chances of allowing someone to remain within Canada. As the appellant puts it
    in his factum on appeal, The issue was not whether the allegation of abuse
    would, in the eyes of the Immigration and Refugee Board, affect the
    application, but whether the complainant
believed
the allegation could
    affect the outcome and was motivated to make an allegation based on her belief
    (emphasis in original).

[57]

As well, the application judge is said to have
    erred by concluding that the defence only wanted the third-party records to
    challenge the complainants credibility, when in fact those records were
    necessary to show that the complainant had a motive to fabricate the
    allegations.

[58]

I see no error in the application judges
    conclusion that the third-party records were not likely relevant.

[59]

A third-party records application involves two
    stages. Within the first stage, there are two steps, the first being whether
    the subject records are likely relevant:
Criminal Code
, s. 278.5(1)(b).
    If the third-party records are likely relevant, then there must be a
    determination as to whether it is necessary in the interests of justice to
    produce the records to the court for review:
Criminal Code
, s.
    278.5(1)(c). This application started and ended at the first step of the first
    stage, the one involving likely relevance.

[60]

Likely relevance means that there is a reasonable
    possibility that the information is logically probative to
an issue at trial or the competence of a witness to testify

    (emphasis in original):
R. v. OConnor
,
[1995]
    4 S.C.R. 411, at para. 22,
per

Lamer C.J. and Sopinka J. (dissenting, but
    not on this point);
R. v. Mills
, [1999] 3 S.C.R. 668, at para. 45
. This is
    a higher threshold than the very modest threshold test for regular Crown
    disclosure:
Mills
, at para.
45;
R. v. Batte
(2000), 145 C.C.C. (3d) 449 (Ont. C.A.), at para. 72.

[61]

The application judge understood this legal
    threshold. She simply found that there was no evidence that there was anything
    in the complainants refugee claim file that could be relevant to the issues to
    be decided at trial. Indeed, the appellant acknowledged during oral submissions
    before the application judge that there would not be anything in the complainants
    file supporting the claim that the abuse allegations were falsified.

[62]

When pressed by the application judge to
    articulate the likely relevance of the third-party records, the appellant indicated
    that the records would not assist with determining whether the complainant
    falsified her allegations but would assist with determining a timeline of
    events. As the defence counsel put it:

What Im suggesting is that what it may
    provide us with is some corroboration of what my clients position would be
    with respect to the timeline of events that occurred in the months preceding
    these allegations being brought. I dont think that those records are going to
    substantiate that she admitted to my clients sister that she fabricated
    something.

[63]

In order to support the allegation of a motive
    to fabricate, the third-party records would have had to reference the advice
    that the complainant was said to have received about her refugee claim being
    strengthened by making an allegation of abuse. The application judge was right
    that there was no evidence that the complainants refugee file would contain
    information that would be relevant to determine the trial issues. Indeed, the
    defence counsel conceded that the file would not support the claim that the
    allegations were fabricated.

[64]

I do not agree that the application judge erred
    by failing to appreciate the nature of the application. While the application
    judge made passing reference to the fact that reporting an assault occurring in
    Canada would not likely improve ones chances of remaining in Canada, this
    observation was rooted in
viva voce
evidence given by the record
    holder before the application judge. The application judge was well aware of
    the defence position that the third-party records were relevant to the
    allegation that the complainant believed that making a claim of assault would
    improve her chances of remaining in Canada. Indeed, during a back-and-forth
    exchange with counsel, the application judge accurately summarized the defence
    position concerning motive to fabricate.

[65]

Nor do I accept the appellants suggestion that
    the application judge erred by characterizing the relevance of the third-party records
    as going only to the credibility of the complainant, as opposed to a motive
    to fabricate. At its core, an allegation of a motive to fabricate is, in fact,
    an allegation that the witness is lying  that the witness lacks credibility.
    Regardless, the application judge understood the appellants position that the
    complainant made a false allegation against the
[appellant]
in order to further her claim for refugee status. Clearly, the application
    judge understood the core nature of the appellants claim. She simply rejected
    it on the basis that she had no information before her that would suggest that
    there would be anything in the third-party records to support that claim.

[66]

Finally, I would highlight the following
    observation made by the respondent on appeal. The fact is that the appellant
    was able to advance his claim of motive to fabricate at trial without the
    third-party records. During cross-examination, the complainant confirmed that
    she had initiated an immigration claim prior to meeting the appellant, that she
    had a hearing in 2012, and that her claim had been denied later that year. She
    also acknowledged that her claim was ultimately allowed on October 31, 2017,
    after which she became a permanent resident of Canada. Finally, she
    acknowledged that she referenced her allegations against the appellant in her
    renewed claim.

[67]

Accordingly, the defence counsel was able to
    achieve through cross-examination at trial what she had hoped to achieve with
    the third-party records: she established a timeline of the immigration
    procedures; and she received an acknowledgement that the renewed claim for
    immigration status included the criminal allegations against the appellant.

[68]

Therefore, the application judge made no error
    in concluding that the third-party records were not likely relevant and by dismissing
    the appellants third-party records application.

D.

Disposition

[69]

For the reasons above, I would allow the conviction
    appeal, set aside the convictions, and order a new trial.

[70]

Although the Notice of Appeal contains reference
    to an appeal from sentence, given the need for a new trial, there is no reason
    to address the sentence appeal.

Released: JMF May 31, 2021

Fairburn
    A.C.J.O.

I
    agree David Watt J.A.

I
    agree Grant Huscroft J.A.