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    any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),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    identify the victim shall not be published in any document or broadcast or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. Kiss, 2018 ONCA 184

DATE: 20180226

DOCKET: C60993

Epstein, Paciocco and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Ronald Kiss

Appellant

DOCKET: C61286

AND BETWEEN

Her Majesty the Queen

Appellant

and

Andrew Ronald Kiss

Respondent

Keith E. Wright, Esq., for the appellant (C60993)/ respondent
    (C61286)

Hannah Freeman, for the respondent (C60993)/ appellant
    (C61286)

Heard: November 30, 2017

On appeal from the conviction entered on July 13, 2015
    and the sentence imposed on October 19, 2015 by Justice Gary W. Tranmer of the Superior
    Court of Justice, sitting without a jury.

Paciocco J.A.
:

OVERVIEW

[1]

Andrew Kiss was convicted after a judge alone trial of sexually
    assaulting K.S. in a university dorm room. Like many date-rape prosecutions,
    this was a he-said, she-said case. And like many such cases, the parties were
    young, barely adults at the time. Andrew Kiss was not yet 19. K.S. had just
    reached that age.

[2]

A number of witnesses testified at the trial, but K.S. and Mr. Kiss told
    the heart of the story. By the end of the trial, the trial judge believed
    K.S.s evidence beyond a reasonable doubt, and disbelieved Mr. Kisss evidence
    to the point where it did not raise a reasonable doubt.

[3]

Mr. Kiss raised a number of grounds of appeal related to his conviction.
    Most of those grounds, some of which were abandoned during oral argument, can
    be easily dismissed. The trial judge handled numerous legal issues that arose
    with alacrity in his thorough decision.

[4]

However, in my view, the credibility evaluation in this case  one of
    the most difficult tasks trial judges perform  was sufficiently problematic to
    require this conviction to be overturned and a new trial ordered. The trial
    judge did not properly deal with an admitted exhibit. More importantly, he
    erred in the admission and use of reply evidence that related to Mr. Kisss
    credibility. Most significantly, this is one of those uncommon cases where the
    conviction cannot stand because the trial judge applied different levels of
    scrutiny to the testimony of K.S. and Mr. Kiss.

[5]

Given that the conviction appeal must be allowed, it is not necessary to
    address the Crowns appeal of Mr. Kisss sentence.

THE BASE NARRATIVES OF K.S. AND MR. KISS

[6]

It is not necessary to recount all of the evidence at the outset of this
    decision in order to explain the outcome of the conviction appeal. I will focus
    on the base narrative of events offered by the two key witnesses, K.S. and Mr. Kiss,
    to set the stage for the discussion that follows. Other features of their
    testimony, as well as evidence offered by other witnesses, will be described as
    required where it is material to the issues in this appeal.

[7]

Both Mr. Kiss and K.S. agree that they did not know each other before
    the evening of March 13, 2012. They met at a campus bar shortly after 11:00
    p.m. when Ms. Kiss arrived, after being introduced by friends. They chatted,
    drank alcohol, and flirted. When it came time to leave, Mr. Kiss offered to
    walk K.S. home. She agreed.

[8]

From there, their accounts diverge.

A.

K.S.s account

[9]

K.S. said that Mr. Kiss was quite drunk when they left the bar but that his
    motor and cognitive skills were not so impaired that they were unable to have a
    conversation. There was no hand holding or kissing en route. She said that when
    they arrived at her dorm room she invited him in.

[10]

K.S.
    testified that shortly after entering her room, Mr. Kiss retrieved a condom
    from his pocket. They chatted for as long as 10 to 15 minutes. Then he joined
    her on the bed where she had been sitting and they kissed, first while seated,
    and then while lying down. This led to mutual sexual touching, which K.S.
    agrees was consensual. She says the touching was over their clothing.

[11]

K.S.
    said that she had no intention of having sexual intercourse and decided things
    had gone far enough. She sat up and told Mr. Kiss that she had a boyfriend. He
    said he did not care and continued to kiss her. He reached into the neck of her
    buttoned shirt and gave it one quick, forceful tug, opening her shirt to her
    mid-stomach. He pulled down her bra and kissed her breasts. She told him that she
    did not want to do this, but he persisted.

[12]

K.S.
    testified that she managed to sit up near the end of the bed. Mr. Kiss shoved
    her, causing her head to bang on the wall. After 10 seconds, he shoved her onto
    the floor. She landed with her head between the bar fridge and the foot of the
    bed.

[13]

K.S.
    tried to shimmy away but he climbed on top of her almost immediately after
    she hit the floor. He used his body weight to hold her down. She repeatedly
    said no and struggled with him for some time. While he was forcing her body
    to the ground, in one motion and with one hand, he pulled her skirt and
    underwear down to her knees where they remained. K.S. agreed that sound travels
    in her building, but testified that it did not occur to her to cry out for
    help. She said that Mr. Kiss penetrated her with his finger while holding her
    down with his forearm.

[14]

K.S.
    testified Mr. Kiss, who had removed his pants, penetrated her vagina with his
    penis. In order to do so, Mr. Kiss used his knees to force her legs open while
    her skirt and panties were still on her body just below her knees. Within as
    little as six seconds, she was able to wiggle a leg free and pull it back to
    her chest. She kicked him to get him off. He stood up, removed the condom he
    had been wearing, and threw it onto a pile of clothes. She had not been aware
    that he was wearing a condom until then. She agreed that he did not put the
    condom on when he was on the bed.

[15]

After
    he got up, Mr. Kiss said he was sorry. He pulled up his pants and put on one of
    the two shirts he had been wearing and said he was going to the washroom. She
    told him to get the fuck out of the building. Again, he said he was sorry. He
    also said words to the effect of, next time I will do better. He departed,
    leaving his T-shirt behind.

[16]

K.S.
    testified that she threw the condom into the wastebasket and changed into
    pyjama pants and a sweater. She then texted her closest friend, A.S., who lived
    below her, to come to her room right away. A.S. did not respond immediately.
    K.S. testified that she then went to the dorm room next door where her
    neighbour D.B. and his girlfriend R.R. were found. She asked D.B. and R.R. if
    they heard a noise when she hit her head on the wall or fell to the floor. K.S.
    was permitted to narrate in her testimony that D.B. confirmed he had heard such
    noises.
[1]
K.S. then texted A.S. again. She told D.B. and R.R. what happened. They
    suggested she call campus security but she felt this would be a little
    extreme.

[17]

A.S.
    then showed up at D.B.s room along with her friend A.W. A short time later K.S.,
    A.S., and A.W. left D.B.s room and went to K.S.s room to discuss things. K.S.
    spoke to A.S. and A.W. about what had occurred. These young women also
    suggested calling campus security. K.S. agreed, went back to D.B.s room, and
    D.B. made the call. K.S. ultimately went to hospital.

B.

Mr. Kisss account

[18]

Mr.
    Kiss gives a diametrically opposed account.

[19]

In
    his testimony, Mr. Kiss said that when they left the bar he had a buzz but
    said he was not really drunk or intoxicated. He said he and K.S. held hands
    and flirted as they walked. It was implicit that sexual activity was going to
    occur. They kissed in the elevator. They both went directly to the bed when
    they entered the room.

[20]

He
    says they fondled and K.S. removed her shirt. He removed her bra from the back,
    an act that took some time to achieve because of his inexperience. He took off
    his shirt, but not his T-shirt. He kissed her breasts and they fondled each
    others genitals. Neither asked for consent, but it was implied.

[21]

Mr.
    Kiss said he then asked K.S. if she wanted to have sex. She said yes. They each
    removed the balance of their clothing. He removed a condom from his pants
    pocket and opened it in front of her. He did not put it on correctly at first,
    but then managed, using both hands. He moved on top of her and they had sexual
    intercourse on the bed, without any resistance from her. It lasted only for a
    minute before he lost his erection.

[22]

They
    soon agreed that things were not working out and stopped. Mr. Kiss was
    embarrassed and upset. This was his first attempt at sexual intercourse and he experienced
    erectile dysfunction. He removed the condom and threw it in the garbage. He
    agreed he might have told K.S. he would do better next time. He dressed, aware
    that he was not putting on the T-shirt he had been wearing when he arrived. He
    said he could not find it and did not want to turn on the light to look for it.

[23]

Mr.
    Kiss said he left and went back to his residence. He said that his two
    roommates, C.D. and J.N., were home and asleep. He went directly to bed.

[24]

A
    week later Mr. Kiss was arrested. He gave a voluntary statement after telling the
    police, You will realize how ridiculous this is, when I tell my side.

[25]

K.S.s
    story did not sound ridiculous to the trial judge. As I said, he believed K.S. beyond
    a reasonable doubt and was left in no doubt by Mr. Kisss evidence.

ISSUES

[26]

Mr.
    Kiss pursued several grounds of appeal. Based on the arguments advanced, I
    would describe them as follows:

(a)

the trial judge misapplied the burden of proof;

(b)

the trial judge erred by relying on Mr. Kisss silence during a police
    interview in evaluating his credibility;

(c)

the trial judge erred in using K.S.s lack of embellishment in
    evaluating her credibility;

(d)

the trial judge erred in his treatment of Exhibit 11, the shirt K.S. had
    been wearing;

(e)

the trial judge erred in the admission and use of reply evidence from
    Mr. Kisss friend, J.N.; and

(f)

the trial judge applied different levels of scrutiny in his credibility
    evaluation.

[27]

I
    will discuss the first three grounds of appeal, which I reject, before
    analyzing the remaining grounds of appeal that I would allow.

ANALYSIS  THE REJECTED GROUNDS OF APPEAL

(a)

THE TREATMENT OF THE BURDEN OF PROOF

[28]

Mr.
    Kiss argued that the trial judge misapplied the burden of proof by convicting
    Mr. Kiss after accepting K.S.s evidence on the preponderance of
    probabilities. Mr. Kiss also argued that the trial judge erred by disposing of
    individual credibility challenges on the basis that, in isolation, they did not
    raise a reasonable doubt. I do not accept that the trial judge erred in either
    respect.

[29]

The
    claim that the trial judge convicted Mr. Kiss because he accepted K.S.s
    evidence on the preponderance of probabilities is, strictly speaking, a
    challenge to the standard and not the burden of proof. However it is described,
    the relevant challenge is based primarily on the penultimate paragraph in the reasons
    for judgment:

On all the evidence, I am satisfied that the complainant
    demonstrated no carelessness with the truth. I am satisfied that her evidence
    is in harmony with the preponderance of the probabilities which a practical and
    informed person would readily recognize as reasonable in that place and in
    those conditions.

[30]

In
    isolation, this passage may appear to be problematic. The phrase in harmony
    with the preponderance of probabilities comes, however, from
Faryna v.
    Chorny
, [1952] 2 D.L.R. 354, [1951] B.C.J. No. 152 (B.C.C.A.), a case the
    trial judge had cited earlier in his reasons. The
Faryna
decision is
    widely regarded as offering guidance in the evaluation of credibility and
    reliability, whether in criminal or civil cases. The relevant passage from the
Faryna

decision, at para. 10, is not about weighing the evidence to see whether it
    is more likely true than not, as the balance of probabilities standard
    requires. Instead, the passage offers advice on the importance of considering
    the probability or improbability of an account:

The credibility of interested witnesses, particularly in cases
    of conflict of evidence, cannot be gauged solely by the test of whether the
    personal demeanour of the particular witness carried conviction of the truth.
    The test must reasonably subject his story to an examination of its consistency
    with the probabilities that surround the currently existing conditions. In
    short, the real test of the truth of the story of a witness in such cases must
    be its harmony with the preponderance of probabilities which a practical and
    informed person would readily recognize as reasonable in that place and in
    those conditions.

[31]

The
    plausibility of K.S.s account was a central theme in this case. The trial
    judge was doing no more in referring to the preponderance of probabilities than
    responding to defence challenges to the plausibility of K.S.s account. The
    trial judge was saying that he found K.S.s story to be plausible,
i.e.
,
    in harmony with the way things can and do happen. It was appropriate for the
    trial judge to have done so.

[32]

The
    second portion of the burden of proof ground of appeal relates to three
    occasions when the trial judge said that specific challenges to K.S.s credibility
    did not leave him with a reasonable doubt. The trial judge did so when he rejected
    the contention that K.S.s account of what Mr. Kiss was able to accomplish with
    one hand while holding her down was implausible. The trial judge also said that
    the implausibility claim relating to K.S.s ability to kick Mr. Kiss in the
    chest while he was on top of her did not leave [him] with a reasonable doubt
    that it occurred as she described. And when discounting the significance of
    her unusual claim that her skirt was shorter in the back than the front the
    trial judge commented that he could not say, that point raises a reasonable
    doubt about the core elements of the alleged offence.

[33]

Of
    course, the appropriate question is not whether any particular credibility or
    reliability challenge raises a reasonable doubt; it is whether the evidence as
    a whole leaves a reasonable doubt. For this reason, it is not advisable to
    explain the rejection of individual challenges by referencing the ultimate
    standard of proof for a conviction. When the trial judges decision is read, as
    a whole, however, it is evident that he understood his obligation to consider whether
    there was a reasonable doubt based on the totality of the evidence. He
    described his duty to do so on a number of occasions, and he quoted from case law
    admonishing that evidence is not to be weighed in isolation. More importantly, his
    reasons, when read in their entirety, show a cumulative evaluation took place.

[34]

Although
    it would have been better if the trial judge had not used burden of proof
    language in explaining why he was rejecting defence challenges to individual
    components of the Crown case, in my view, this was a case of infelicitous
    language, not an error in analysis.

(b)

THE USE OF MR. KISSS SILENCE

[35]

The
    trial judge rejected Mr. Kisss testimony that he asked K.S. whether she wanted
    to have sex and that she consented. In doing so, the trial judge relied heavily
    on Mr. Kisss failure to mention this version of events during his police
    interview. Mr. Kiss says this use of his pre-trial sentence was improper, and
    that the Crown should not have been allowed to ask him about his silence during
    cross-examination.

[36]

To
    be sure, it is generally improper to consider what an accused did not say to
    the police. But not here. As I will explain, the trial judge relied on the
    inconsistency between the versions of events told by Mr. Kiss, not on Mr.
    Kisss failure to speak. I will begin that explanation by describing what is
    not permissible when it comes to the pre-trial silence of the accused, as it
    will help to make the point.

[37]

It
    is not permissible to use the pre-trial silence of the accused when interacting
    with persons in authority as an implied admission, or as evidence of consciousness
    of guilt. This is what the trial judge improperly invited the jury to do in
R.
    v. Turcotte
, 2005 SCC 50, [2005] 2 S.C.R. 519, after Mr. Turcotte failed
    to give information to the police that he would have been expected to give had
    he been innocent. As this court said in
R. v. Poirier
, [2000] O.J. No.
    2292, 133 O.A.C. 352, at para. 18, no inference can be drawn that if the
    accused was innocent he or she would have asserted his or her innocence upon
    arrest.

[38]

It
    is also wrong to use the fact that the accused remained silent, instead of
    offering an explanation to the authorities on a previous occasion, to reject an
    account offered by the accused for the first time at trial:
R. v. Rohde
,
    2009 ONCA 463, 246 C.C.C. (3d) 18, at para. 14;
R. v. Duong
,
2014
    ONCA 375, 311 C.C.C. (3d) 139, at para. 54;
R. v. J.S.
, 2018 ONCA 39,
    at paras. 55-56; and see the helpful summary of the authorities in
R. v.
    Doyle
, 2017 ONSC 1826, [2017] O.J. No. 1587, at paras. 71-96.

[39]

If
    these kinds of reasoning were permitted, the right to silence would be a snare
    and a delusion:
Turcotte
, at para. 45. The law would hold out to the
    accused that they are entitled to remain silent, but then use their silence
    against them:
R. v. Chambers
, [1990] 2 S.C.R. 1293, at p. 1316.

[40]

In
    contrast, it is not a snare and a delusion to use the voluntary pre-trial
    statements of accused persons against them. Those who make voluntary pre-trial
    statements have not remained silent. They have chosen to speak. They have
    waived the very protection the right to silence offers:
R. v. Hebert
, [1990]
    2 S.C.R. 151. It follows that if what they voluntarily said before trial is
    materially inconsistent with the testimony they give at trial, no objection can
    be taken to using that inconsistency to discount their testimony.

[41]

Naturally,
    testimony can be inconsistent with a voluntary, pre-trial statement because it
    deviates from the pre-trial statement by adding details that materially change
    the narrative offered. The adverse inference drawn from this kind of
    inconsistency is based not on the exercise of the right to silence but on the
    inconsistent stories being told. The permissible inference is not from silence,
    it is from the material differences in the versions told.

[42]

This
    is the heart of this courts reasoning in
R. v. Hill
,

2015 ONCA
    616, 330 C.C.C. (3d) 1. Mr. Hill, charged with murder, was seeking a
    manslaughter conviction based on the partial defence of provocation. When he
    described the fatal confrontation to the police he gave a version that did not
    include allegations that the victim verbally abused and physically assaulted
    him. His trial testimony added these features. The Crown cross-examined Mr.
    Hill about this. This court held that the cross-examination was appropriate.
    The rule was described at para. 46:

The propriety of cross-examination on a prior statement made by
    an accused to the police turns on the purpose of the cross-examination. If the
    cross-examination is designed to challenge the credibility of an accuseds
    testimony based on inconsistencies between that testimony and a previous version
    of events provided by the accused, the cross-examination is appropriate. If,
    however, the cross-examination invites the trier of fact to draw an adverse
    inference from the accuseds silence when questioned by the police, the
    cross-examination is inappropriate.

[43]

Mr.
    Kiss asked us to refrain from following
Hill
, saying that this
    discussion is
obiter

and inconsistent with higher authorities. I
    disagree. The
Hill
decision is neither
obiter
nor
    inconsistent with higher authorities.

[44]

In
Hill
,

Doherty J.A., writing for the court, relied on the
    principle I just described to finally dispose of a ground of appeal. The
    holding is not
obiter

simply because the appeal was successful
    on another issue.

[45]

And
    while there are, in higher authorities, broad passages that impose no
    qualifications on the general principle prohibiting the use of the pre-trial silence
    of accused persons against them, those authorities are not about inconsistent
    statements. In
Hill
,
at
    paras. 43-48, this court explained the limits of the general principle where
    such inconsistencies do occur.

[46]

This
    courts decision in
R. v. A.G.
, 2015 ONCA 159, 319 C.C.C. (3d) 441 is
    to the same effect. At para. 30, this court reinforced the need to tread
    carefully when relying on inconsistences that are based on omitted detail. I
    agree. There are preconditions to admissibility meant to control cross-examination
    and impeachment in such cases.

[47]

First,
    the pre-trial statement must be a narrative relating to precisely the same
    topic as the testimony. The difference between the accused offering
    inconsistent versions on precisely the same topic and being selective about
    what topics are discussed must be respected. The former may count against the
    credibility of the accuseds testimony whereas the latter may not.

[48]

Second,
    the omissions from the pre-trial statement must be material enough to rely upon
    fairly.

[49]

Third,
    the pre-trial statement must be used for a proper purpose. Specifically, inconsistencies
    that arise from omissions can only inform an assessment of the credibility of
    the accuseds testimony, and cannot ground inferences about guilt.

[50]

In
    this case, Mr. Kiss has not established that the Crown engaged in improper
    cross-examination, about his silence or that the trial judge misused the pre-trial
    statement. Mr. Kisss testimony that consent to sex was discussed and
    explicitly granted by K.S. was a material change from the narrative account
    that he offered to the police about his sexual interaction with K.S. Mr. Kiss
    did not simply raise a new topic at trial that he had chosen not to discuss
    before. Instead, he gave a different version of the way that consent was
    communicated. The trial judge committed no error in permitting the Crown to
    pursue this line of cross-examination, or in using the inconsistency to reject Mr.
    Kisss testimony.

(c)

THE LACK OF EMBELLISHMENT

[51]

On
    two occasions when evaluating K.S.s testimony, the trial judge commented that
    he found no examples of her exaggerating or embellishing her testimony. Mr.
    Kiss asserts that the trial judge erred in law by using the lack of
    exaggeration or embellishment to enhance K.S.s credibility. I am not persuaded
    that this error occurred.

[52]

The
    trial judge would have erred if he treated the absence of embellishment as
    adding to the credibility of K.S.s testimony. It is wrong to reason that
    because an allegation could have been worse, it is more likely to be true:
R.
    v. G.(G.)
(1997), 115 C.C.C. (3d) 1, at p.10 (Ont. C.A.), [1997] O.J. No.
    1501;
R. v. L.L.
, 2014 ONCA 892, at para. 2;
R. v. R.A.G.
, 2008
    ONCA 829, at para. 20. While identified exaggeration or embellishment is evidence
    of incredibility, the apparent absence of exaggeration or embellishment is not
    proof of credibility. This is because both truthful and dishonest accounts can
    appear to be without exaggeration or embellishment.

[53]

On
    the other hand, in my view, there is nothing wrong with a trial judge noting
    that things that might have diminished credibility are absent. As long as it is
    not being used as a makeweight in favour of credibility, it is no more
    inappropriate to note that a witness has not embellished their evidence than it
    is to observe that there have been no material inconsistencies in a witness
    evidence, or that the evidence stood up to cross-examination. These are not
    factors that show credibility. They are, however, explanations for why a
    witness has not been found to be incredible.

[54]

Trial
    judges are presumed to know the law. In this case, there is no basis for
    apprehending that the trial judge inappropriately added weight to K.S.s
    credibility. In my view, on a fair reading of the reasons for judgment, the
    trial judge was simply recording that K.S.s evidence did not suffer from a
    problem of exaggeration or embellishment that would have diminished its weight.
    He did not err on this ground.

ANALYSIS  THE SUCCESSFUL GROUNDS OF APPEAL

(d)

THE TREATMENT OF EXHIBIT 11, THE COMPLAINANTS SHIRT

[55]

Exhibit
    11 was the button shirt that K.S. was wearing during the alleged sexual
    assault. At trial, she testified that Mr. Kiss pulled the shirt open with one
    quick and forceful tug. She told the police that he ripped her shirt off, and
    that he tried to tear it off. The defence position was that an examination of the
    shirt would show that K.S.s version was impossible given the complete absence
    of damage to the shirt. The trial judge, despite hearing oral evidence that the
    shirt was undamaged, chose not to look at the shirt during deliberations before
    rejecting the defence theory as speculative and unhelpful in indicating an
    unlikeliness of the truth of the complainants account.

[56]

Mr.
    Kiss argues that it was unfair of the trial judge not to inspect the shirt before
    coming to his conclusion. I agree, in part. In my view, the trial judge should
    either have inspected the shirt, or alerted counsel to his concerns about the
    propriety of doing so, so that counsel could respond. He did neither. In the
    circumstances of this case, this was unfair to Mr. Kiss.

[57]

Critical
    to my conclusion is that Mr. Kisss counsel reasonably expected that the shirt
    would be inspected, and that the trial judge contributed to that expectation.  It
    was evident during the trial that Mr. Kiss was placing a heavy reliance on the trial
    judges examination of the shirt. The Crown did not put K.S.s shirt into
    evidence. Counsel for Mr. Kiss did. When he was tendering the shirt as an
    exhibit, defence counsel invited the trial judge to inspect it later. The trial
    judge said Alright. The Crown raised no objection.

[58]

During
    closing submissions, defence counsel submitted that an examination of the shirt
    would support the defence position that Mr. Kiss could not have ripped the
    shirt open as K.S. described. At no time did the trial judge express any
    reservations about looking at the shirt.

[59]

In
    my view, if the trial judge was going to defeat the expectation that the shirt
    would be inspected, an expectation that he had helped to create, he should have
    alerted defence counsel so that defence counsel could either attempt to allay
    the trial judges concerns, or consider an alternative way of using the shirt
    to show the implausibility of K.S.s description of how the shirt came to be
    open.

[60]

It
    is not fanciful to suggest that had the opportunity to allay the trial judges
    concerns been provided, defence counsel may well have succeeded in persuading the
    trial judge to inspect the shirt. I say this because the trial judges reasons
    for not inspecting the shirt are problematic.

[61]

Specifically,
    when the trial judge disclosed in his reasons for judgment that he had not
    examined the shirt, he said:

While the garments are available as exhibits, and defence urged
    me to carefully examine them, I do not have the necessary expertise or the
    ability to undertake a proper demonstration, nor should I do so, in the absence
    of counsel and the accused.

[62]

First,
    the trial judge misapprehended defence counsels request. Defence counsel did
    not ask the trial judge to undertake a demonstration with the shirt in the
    absence of counsel. He simply wanted the fabric, fit, and condition of the
    buttons and buttonholes to be examined.

[63]

Second,
    the trial judges disclaimer of expertise, made without even looking at the
    shirt, is open to significant debate. It is difficult to accept that ordinary
    experience would never enable a conclusion to be made as to the likelihood of a
    garment being damaged by a quick and forceful tug, regardless of its make,
    design, or the size of the buttons or buttonholes. Arguably, the trial judge
    should at least have looked at the garment before disclaiming his ability to
    draw a relevant inference. In effect, the trial judge was speculating that it
    would be speculative to conclude that K.S.s shirt would have been damaged if
    Mr. Kiss did what she claimed. If the trial judge had shared his belief that he
    did not have the expertise to conduct a meaningful inspection, defence counsel
    might well have been able to persuade the trial judge otherwise.

(e)

THE EVIDENCE OF J.N. IN REPLY

[64]

The
    trial judge permitted the Crown to call Mr. Kisss roommate, J.N., as a reply
    witness. Reply evidence was permitted on two topics. First, the Crown was
    permitted to call J.N. to testify that Mr. Kiss was very intoxicated, contrary
    to Mr. Kisss testimony that he was not. Second, the Crown was permitted to
    confirm that Mr. Kisss roommate, C.D., told J.N. that he tried to intervene
    between Mr. Kiss and K.S. because Mr. Kiss was drunk.

[65]

In
    my view, the trial judge erred in permitting reply evidence to be given on this
    latter point. The trial judge said it was admissible on the same basis as the
    other reply evidence, in other words, to prove that Mr. Kiss was very
    intoxicated. Yet, J.N.s testimony that C.D. said Mr. Kiss was drunk is
    inadmissible hearsay if it was offered for that purpose.

[66]

Nor
    could J.N.s testimony about what C.D. told him come in as a prior inconsistent
    statement to discredit C.D since C.D. admitted in cross-examination that he
    made this statement to J.N. The reply evidence on what C.D. told J.N. should
    not have been admitted.

[67]

The
    treatment of the reply evidence relating to J.N.s own observations and
    opinions about Mr. Kisss sobriety was also in error. It may have contravened
    the collateral fact rule described in
R. v.
Krause, [1986] 2 S.C.R. 466,
    p. 473, [1986] S.C.J. No. 65, at para. 15, since the degree of Mr. Kisss
    intoxication was not an issue essential for the determination of the case.
    Whether the collateral fact rule was violated by the reply evidence is
    debatable because the rigid conception of what facts are collateral embraced in
Krause
may have been overtaken by a more principled approach that does
    not treat sufficiently important evidence about credibility as collateral:
R.
    v. R.(D.)
, [1996] 2 S.C.R. 291, at paras. 41-45, [1996] S.C.J. No. 8; and
R.
    v. C.F.
, 2017 ONCA 480, at paras. 58-66. I need not resolve the question
    because a more serious error occurred relating to J.N.s reply evidence.

[68]

Specifically,
    the trial judge allowed the Crown to exceed the permission he had granted to
    call J.N. to prove Mr. Kisss degree of impairment. Instead, the Crown used the
    reply evidence, improperly, as an opportunity to call and discredit J.N. for
    the purpose of discrediting Mr. Kiss through a collusion theory for which no
    foundation had been demonstrated. The trial judge did not intercede to prevent
    this. He facilitated it, and then treated the evidence obtained as
    significant. This undermined the fairness of the trial.

[69]

When
    the Crown called J.N. as a witness, there was no reasonable expectation that
    J.N. would provide proof that Mr. Kiss was very intoxicated. From the outset,
    it was obvious that J.N. was a reluctant witness. The day before J.N. was
    called as a witness, the Crown asked the trial judge for a material witness
    warrant on the basis that J.N. was evading service. J.N. came to court only
    after the trial judge made clear that a material witness warrant would issue if
    he did not do so. As the trial judge learned after J.N. began to testify, when
    J.N. arrived at court, he told the police that he was recanting his police
    statement. He claimed the statement, including his comments relating to Mr.
    Kisss state of intoxication, was not accurate.

[70]

Almost
    as soon as J.N. took the stand, the Crown began to ask questions that would set
    the stage for a finding that J.N. was not cooperating because he was in
    collusion with Mr. Kiss. Before even attempting to ask about Mr. Kisss state
    of sobriety, the Crown began exploring the close friendship between J.N. and
    Mr. Kiss: when was the last time that J.N. spoke to Mr. Kiss and to C.D., and
    what were they talking about. J.N. was then asked questions about his lack of
    cooperation in coming to court, about giving his police statement, about his
    recantation, and about speaking to Mr. Kiss about coming to court. These
    questions were not directed at securing testimony on the permitted subject
    areas, nor were they basic introductory questions. Notwithstanding that it was
    the Crown that called J.N. as a witness, these questions were in the nature of
    cross-examination relevant to the prospect of collusion. These questions were
    extensive enough to take up 18 pages of trial transcript before the Crown got to
    the subjects it was permitted to ask J.N. about.

[71]

After
    J.N. failed to offer evidence confirming Mr. Kisss intoxication, the Crown
    sought and received leave under the
Canada Evidence Act
, R.S.C. 1985,
    c. C-5, s. 9(2) to cross-examine J.N. That cross-examination took place. The
    Crown then sought a declaration of adversity under s. 9(1) to cross-examine
    the witness at large. The trial judge agreed that J.N. was adverse, but when
    disagreement ensued over whether a s. 9(1) declaration of adversity would enable
    the Crown to cross-examine J.N. at large in light of this courts decision in
R.
    v. Figliola
, 2011 ONCA 457, 105 O.R. (3d) 641, the Crown abandoned the
    application.

[72]

By
    then the Crown had what it sought. J.N. was presented as a very close friend of
    Mr. Kiss who had recently spoken to Mr. Kiss and C.D., and who, like them, was
    recanting statements he had made to the police about Mr. Kiss being very drunk
    when he returned to their apartment. This was a material theme in the Crowns
    closing arguments, and it registered with the trial judge, who said:

It is significant to the decision that I have reached in this
    case that Mr. Kiss, [C.D. and J.N.] all gave testimony contrary to their
    statements to the police.

Mr. Kiss told the police on March 19
th
, 2012, that
    he was really drunk, nine out of ten. [C.D] told the police, in March of
    2012, that Andrew was getting trashed at the bar. [J.N.] told the police, in
    March of 2012, that Andrew was clearly very drunk when he got home, and that
    [C.D.] had told him that Andrew was really drunk at the bar.

There was an order made excluding witnesses at the outset of
    the trial. All three of the witnesses testified contrary to their police
    statements  that each made independently of the other, in March of 2012,
    shortly after the night in question  and testified, at trial, that Andrew was
    not drunk that night.

[73]

In
    my view, the use of J.N.s testimony to discredit Mr. Kisss defence in this
    way was improper.

[74]

First,
    as the Nova Scotia Court of Appeal stated in
R. v. Clair
(1995) 143
    N.S.R. (2d) 101 (C.A.), [1995] N.S.J. No. 318, leave to appeal to S.C.C.
    refused [1995] S.C.C.A. No. 450:

As a prefix to the admissibility of rebuttal evidence the Crown
    must present to the trial judge a full and accurate picture of the evidence to be
    called and the purpose of calling it so that the trial judge can properly
    determine if the evidence should be permitted

[Citations omitted.]

[75]

Second,
    the Crown was not responding to evidence that Mr. Kiss had relied upon to
    buttress his case. Instead, the Crown introduced a new witness into the
    proceedings during reply, so that it could discredit that witness (whose
    testimony was never called by Mr. Kiss in his own defence) and then taint Mr.
    Kiss with an allegation of collusion with that witness.

[76]

Third,
    while the law permits witnesses to be called to offer affirmative evidence of
    collusion, the law does not permit the Crown to discredit its own witnesses as
    liars in an effort to discredit the accused. Although technically
    distinguishable, this courts decision in
R. v. Soobrian
(1994), 21
    O.R. (3d) 603 (C.A.), 96 C.C.C. (3d) 208, at p. 216 supports the principle
    that, absent a demonstrated evidentiary foundation linking the alleged lies of
    a witness with the accused, the lies told by that witness are irrelevant in
    assessing the credibility or guilt of the accused. For this reason, unless an
    evidentiary foundation for collusion has been established, the Crown cannot
    call a witness for the purpose of discrediting that witness in order to support
    a collusion theory.

[77]

Similarly,
    in
Figliola
, at para. 61, this court recognized that it is improper,
    and prejudicial, for the Crown to shred the credibility of the Crowns own
    witness and to create a factual matrix to invite the inference that the
    witness was lying for the very purpose of covering up for [the accused] and
    that [the accused is] therefore a liar [] and probably guilty.

[78]

In
    my view, although both
Soobrian
and
Figliola
involved attacks
    on anticipated defences made during the Crown case, the principles apply to
    reply evidence as well. Indeed, they apply with even greater force given the
    limited use that is to be made of reply evidence and the reduced opportunities
    that exist for answering reply evidence. The Crown should not have been
    exploring its collusion theory in reply without demonstrating a foundation to
    the trial judge for doing so.

[79]

The
    trial judge did not intercede when it became evident that the Crown was setting
    the stage to discredit J.N. before broaching the permitted topics. Indeed,
    contrary to the direction in
Soobrian
and
Figliola
that it is
    improper for the Crown to use a s. 9 rulings to discredit its own witness in an
    effort to discredit the accused, the trial judge ultimately gave leave and then
    presided over a s. 9(2) cross-examination.

[80]

The
    trial judge then drew the collusion inference the Crown invited based on the
    coincidental recantations of Mr. Kiss, C.D., and J.N. relating to Mr. Kisss
    state of sobriety, even though Mr. Kiss was never given an opportunity to
    respond to the Crowns collusion theory.

[81]

These
    errors played a central role in the trial outcome. The collusion theory, built
    largely on testimony that should not have been permitted, was, in the trial
    judges own words, significant to the decision. Simply put, the trial judge
    drew a significant inference based on evidence that should not have been
    received. He erred in doing so.

(f)

DIFFERENT LEVELS OF SCRUTINY

[82]

It
    is an error of law for a trial judge to use a higher degree of scrutiny in assessing
    the credibility or reliability of defence evidence than Crown evidence. Where
    this happens, a trial will be unfair to the accused:
R. v. Howe
(2005), 192 C.C.C. (3d) 480 (Ont. C.A.), [2005] O.J. No. 39;
R. v. Owen
(2001)
, 150 O.A.C. 378 (C.A.), [2001]
    O.J. No. 4257; and
R. v. T.(T.)
, 2009 ONCA 613, at paras. 71-74.

[83]

This
    is a notoriously difficult ground of appeal to succeed upon because a trial
    judges credibility determinations are entitled to a high degree of deference,
    and courts are justifiably skeptical of what may be veiled attempts to have an
    appellate court re-evaluate credibility:
R. v. D.T.
, 2014 ONCA 44, at
    paras. 71-73; and
R. v. Aird
, 2013 ONCA 447, at para. 39. An uneven
    scrutiny ground of appeal is made out only if it is clear that the trial judge
    has applied different standards in assessing the competing evidence:
Howe
,
    at para. 59. Where the imbalance is significant enough, the deference normally
    owed to the trial judges credibility assessment is generally displaced:
R.
    v. Rhayel
, 2015 ONCA 377, at para. 96;
R. v. Gravesande
, 2015
    ONCA 774, 128 O.R. (3d) 111, at para. 19; and
R. v. Phan
, 2013 ONCA 787,
    at para. 34.

[84]

In
    my view, this error occurred here. Whereas the trial judge took even the
    leanest opportunities to find reason to reject Mr. Kisss evidence, he was
    uncommonly forgiving of similar and even more serious problems with K.S.s
    testimony.

[85]

To
    be clear, I do not take issue with the trial judges ultimate finding that Mr.
    Kiss was not credible. There was ample evidence to support this conclusion. As
    the trial judge found, Mr. Kiss provided confident, self-serving answers at
    trial on matters he was unsure of in his police statements. It is also a fair
    inference that Mr. Kiss changed his trial story for the better by falsely
    claiming that he obtained verbal consent for sexual intercourse from K.S. Mr.
    Kiss also admitted to lying to the police. This foundation would have been
    sufficient to support the trial judges conclusion that he could not believe,
    or have a reasonable doubt, based on Mr. Kisss testimony.

[86]

The
    problem is that the trial judge supplemented these important considerations
    with a range of far less compelling factors, yet he discounted comparable or
    even more significant problems with K.S.s testimony. Had the trial judge
    applied as exacting a standard of scrutiny to the testimony of K.S. as he
    imposed on Mr. Kiss, he may well have been left with a reasonable doubt.

[87]

I
    will begin with the trial judges use of J.N.s evidence, that he and C.D. were
    awake when Mr. Kiss returned home from K.S.s dormitory. To the contrary, Mr.
    Kiss testified that J.N. and C.D. were asleep when he got home. The trial judge
    used this contradiction against Mr. Kiss. The problem with his doing so is
    three-fold.

[88]

First,
    to a reasonable observer, the decision to rely on J.N.s testimony on this
    point may appear to be unfairly selective. The judge convincingly found J.N. to
    be a thoroughly incredible witness. He was evasive, confusing, and
    inconsistent. Indeed, the trial judge found J.N. to be an adverse witness to
    the Crown. Yet the trial judge chose to believe J.N.s testimony about being
    awake with C.D. when Mr. Kiss returned. A trier of fact is certainly free to
    believe some, all, or none of the evidence of a witness. There should, however,
    be a reasonable basis for the choice that is made. There is no evident,
    reasonable basis on the record or in the reasons for the trial judges choice
    to believe J.N. solely on the one point that contradicted Mr. Kisss evidence.

[89]

Second,
    and more importantly, the trial judge was not consistent about this. He used J.N.s
    testimony that he was up when Mr. Kiss got home to diminish Mr. Kisss
    credibility. But when he was evaluating J.N.s evidence, the trial judge used
    the fact that Mr. Kiss contradicted J.N. on this same point to discredit J.N.

[90]

Third,
    the trial judge treated the contradiction over who was awake when Mr. Kiss
    arrived home as a significant contradiction, even though it was a collateral
    point. He also placed significant reliance on Mr. Kisss inconsistent
    accounts of his sobriety, another collateral point. This included
    inconsistencies in Mr. Kisss evidence about the alcohol he consumed. The problem
    is that the trial judge did not treat the collateral inconsistencies in K.S.s
    testimony the same way.

[91]

K.S.s
    descriptions about what happened after Mr. Kiss left, including her meeting
    next door with D.B. and R.R., and with A.S. and A.W., was more problematic than
    Mr. Kisss descriptions of who was awake when he got home. K.S.s post-event
    accounts were internally inconsistent and externally contradicted on the timing,
    location, and order of events. Yet the trial judge placed no importance on these
    inconsistencies.

[92]

The
    trial judge also discounted K.S.s inconsistent testimony about the amount of alcohol
    she consumed because there was no issue with how intoxicated she was. In fact,
    Mr. Kiss claimed that she was as intoxicated as he was.

[93]

To
    be clear, there is no problem with discounting contradictions because they are
    collateral. This will often be the right thing to do. The instant point is that
    the same measure should be used for both parties, and in this case it was not.

[94]

The
    trial judge was also critical of Mr. Kiss when Mr. Kiss reasoned his way to an
    answer on matters he did not specifically recall. The trial judge said he was
    rationalizing. For example, Mr. Kiss was criticized for testifying that he did
    not say he went to the washroom, not because he remembered never saying it, but
    because he just knew he did not go to the washroom. He was also criticized for
    saying he wore a belt because he typically does so.

[95]

In
    contrast, the trial judge was not troubled that K.S. was trying to reason
    through a contradiction in her evidence about whether she fell into the fridge
    or beside the fridge. He was not troubled that K.S.s response to a challenge
    about why she did not yell for help evolved from a claim that she thought it was
    enough to say, Stop,  to a claim that she froze up, even though the latter
    explanation was offered only after her first answer proved problematic. When
    first confronted with her failure to let Mr. Kiss know that she was not
    interested in sex when he pulled out a condom, she said she did not know why
    she would not have done so. She then explained that it would be weird or rude
    for me to say to someone at that point, I dont want to have sex with you.
    The trial judge did not view K.S.s efforts to reason her way through to an
    answer as rationalizing.

[96]

Once
    again, the point is not that it is right or wrong for a trial judge to consider
    whether a witness answer is based on inference or reason rather than memory.
    The point is that the trial judge expected more of Mr. Kiss than he did of K.S.

[97]

The
    standard of scrutiny applied to Mr. Kisss credibility evaluation was so
    exhaustive that although it was a small point, the trial judge mentioned that
    Mr. Kiss could not explain why his T-shirt was not in the pile with the rest of
    his clothes. In contrast, the trial judge found the material problems with
    K.S.s testimony to be inconsistencies of minor matters, or simply the use of
    different words to describe the same event.

[98]

For
    example, the trial judge treated the inconsistency between K.S.s testimony in
    chief that she took Mr. Kiss to her room just to talk, and her later admission that
    she knew at the time that there would be some sexual activity when they got
    there, as minor. It is difficult to see how, in a consent case, inconsistent
    evidence about whether the complainant expected sexual activity is minor. In
    contrast, the trial judge did not treat as minor the contradiction between a statement
    that Mr. Kiss had made to the police suggesting that he was not attracted to
    K.S., and his demonstrated sexual interest in her.

[99]

Similarly,
    K.S. testified that she did not intend to have sex with Mr. Kiss when he took
    out the condom, but she told A.S. that when Mr. Kiss took out the condom she
    thought, This guys going to get lucky. Even though this contradiction went
    directly to K.S.s willingness to have sex, the trial judge considered this
    contradiction to be minor. It was not.

[100]

The trial judge
    also treated as minor an inconsistency between K.S.s preliminary inquiry
    testimony and her trial testimony about whether she was afraid that Mr. Kiss
    would come back. In context, that inconsistency was material. The evidence at
    trial was that K.S. went to bed naked with the door unlocked after the assault.
    Such behaviour would not be consistent with K.S.s frame of mind if she were
    afraid, as she testified at the preliminary inquiry. The consistency problem
    disappears, however, if K.S. was not afraid, as she testified at trial. Simply
    put, there was reason for concern that K.S. may have changed her trial
    testimony about the state of her fear to fit the narrative better, but the
    trial judge simply dismissed the contradiction.

[101]

K.S. testified
    that she did not scream for help during the alleged assault. The trial judge
    considered this to be unimportant. As the Supreme Court held in
R. v.
    D.(D.)
, 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65, there is no rule as
    to how victims of sexual assault are apt to behave. I reject Mr. Kisss claim
    that the trial judge erred in relying on
D.D.

for this purpose.
    The principle in
D.D.

is not confined to delays in reporting. It
    relates to any stereotypical assumption about how sexual assault victims are
    apt to behave, and it is stereotypical to assume that sexual assault victims
    tend to scream for help. Some will, others will not.

[102]

The problem I
    have, however, is that A.S. testified that K.S. told her that during the
    assault she was screaming, No, and making a lot of noise during the assault so
    that her neighbours would hear her. Without explanation, the trial judge
    disregarded the contradiction as to whether K.S. was seeking help as a minor
    inconsistency. K.S.s reaction was a key part of her narrative of what
    happened, and both versions she gave cannot be true. This contradiction
    required attention.

[103]

There was also
    an important inconsistency in K.S.s description of how she ended up on the
    floor. Up until the preliminary inquiry, K.S. said that Mr. Kiss tackled her
    from the bed, as in football. At trial she said he shoved her to the floor from
    the bed. The trial judge disregarded this discrepancy as a mere matter of
    words. It was not. If Mr. Kiss tackled K.S. to the floor, they both would have fallen
    to the floor together, consistent with what K.S. told L.H. This version
    presented serious plausibility problems for K.S.s evidence that Mr. Kiss
    surreptitiously put a condom on before penetrating her. This is because K.S.
    was clear that he did not put a condom on when they were on the bed together,
    and Mr. Kiss argued that it would have been impossible for him to have put a
    condom on with one hand, while on the floor, wrestling with K.S., as she
    described. The trial judge circumvented this challenge to K.S.s testimony by
    finding that there were other options as to when Mr. Kiss could have put the
    condom on, such as when he got off the bed, and before he got onto the floor.
    If Mr. Kiss tackled K.S. to the floor, there was no such opportunity. The
    inconsistency about how Mr. Kiss got K.S. on the floor was an important feature
    of the narrative, but was disregarded as minor.

[104]

Most troubling
    is that on two occasions the trial judge gave no adverse weight to the complications
    with K.S.s evidence, but instead treated her readiness to admit those
    difficulties as enhancing her credibility and reliability.

[105]

Specifically, K.S.
    testified that after the sexual event ended, Mr. Kiss said, Next time, Ill do
    better. This comment made no sense in the context of K.S.s narrative, but supported
    Mr. Kisss claim that he had experienced erectile dysfunction during consensual
    sex. The trial judge saw the problem, but instead of treating this incongruent
    evidence as taxing the credibility of K.S.s narrative, he said, She did not
    have to give this evidence. It would have been better for her story to have
    left it out, but she did not. Viewed in this fashion, her admission supports
    her credibility and reliability.

[106]

K.S. also testified
    that after Mr. Kiss left, she put pyjama pants and a sweater on before going
    next door. This testimony was at least curious on her version of events since
    she said her clothes were displaced but not removed. She could simply have
    readjusted them. In contrast, her act of getting dressed in pyjamas and a
    sweater supported Mr. Kisss version of events. Mr. Kiss had said she was voluntarily
    naked during their encounter. On that version, she would have to dress before
    leaving the room. Yet, the trial judge did not weigh the impact these competing
    versions had on the evidence. Instead, he disregarded the complication because
    she made that admission.

[107]

Put simply, on
    these two occasions the trial judge disregarded the problems with what K.S.
    said because he was impressed by the fact that she said it. Yet admitting a
    difficult fact does not eliminate the difficult fact. While it was not wrong
    for the trial judge to note the candour of the witness, he should have
    considered the impact of the difficulties that she admitted. This generous
    treatment of K.S.s evidence stands in contrast to the rigid evaluation Mr.
    Kisss testimony received.

[108]

The uneven
    evaluation of the evidence in this case was an error, and it undermined the
    fairness of the trial.

CONCLUSION

[109]

In my view, cumulatively,
    the errors I have identified have caused a miscarriage of justice by
    undermining the fairness of Mr. Kisss trial.

[110]

I would
    therefore allow Mr. Kisss appeal, set aside the sexual assault conviction, and
    order a new trial.

Released: February 26, 2018 (G.E.)

David M. Paciocco J.A.

I
    agree. Gloria Epstein J.A.

I
    agree. I.V.B. Nordheimer J.A.

[1]

D.B. was not called as a witness.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lexier, 2018 ONCA 126

DATE: 20180209

DOCKET: C62707 and C63629

MacFarland, Pardu and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tzvi Lexier

Applicant (Appellant)

Nicolas M. Rouleau and Daniel C. Santoro, for the
    appellant

Heather Graham, for the respondent

Heard: January 30, 2018

On appeal from the order for committal entered on September
    2, 2016 by Justice Katherine B. Corrick of the Superior Court of Justice and
    the decision of the Minister of Justice to surrender the appellant.

REASONS FOR
    DECISION

[1]

The appellant appeals his committal for extradition to the United States
    of America and, by way of judicial review, seeks to quash the surrender order
    of the Minister of Justice.

[2]

The conduct underlying the request involved the appellants management
    of a business that sold pharmaceuticals to doctors and clinics in the U.S.
    without complying with the American regulatory regime governing sales of
    prescription drugs. The companies managed by the appellant generated some 18
    million dollars in revenue by acquiring drugs in other countries and selling
    them in the United States at much lower prices than those approved by the
    American regulatory agencies.

[3]

The appellant concedes that he participated in that scheme, but says
    that the evidence at the committal hearing did not justify a committal for
    fraud. He argues that there was no deprivation and that there was no
    misrepresentation as to the nature of the drugs.

[4]

The Authority to Proceed (ATP) authorized the Attorney General to seek
    a committal on charges of fraud and possession of property obtained by crime.
    The committal hearing proceeded on that basis and the appellant was committed
    for these crimes.

[5]

The Minister then surrendered the appellant to the U.S. for conspiracy
    (not fraud) and the unlicensed distribution of prescription drugs.

[6]

The appellant submits that the process was unfair because he did not
    have an opportunity to respond to the allegations of conspiracy, which is in
    essence a different offence than fraud. In addition, he submits that:

(a)

the committal judge erred when she did not compel disclosure of the
    identities of the anonymous witnesses at the hearing;

(b)

there was insufficient evidence of the appellants participation in the
    fraud alleged; and

(c)

the Ministers decision to surrender on charges of conspiracy was
    unreasonable when fraud, not conspiracy, was the offence named in the ATP.

[7]

We reject these submissions.

[8]

The committal judge lacked the jurisdiction to require the foreign state
    to disclose the names of the witnesses:
U.S.A. v. Khadr
,
[2007] O.J. No 3140, at para. 51 (S.C.);
U.S.A. v. Su Go
,

[2008]
    O.J. No. 3012, at para. 22 (S.C.). Nor was there an air of reality to the
    appellants assertion that the witnesses could have recanted. The main
    cooperating witnesses pleaded guilty to charges relating to the scheme. We are
    not satisfied that any unfairness to the appellant resulted in this case.

[9]

Although the appellant focused his submissions on the allegation of
    fraud, the ATP also listed the charge of possession of property obtained by
    crime. The evidence supported this charge and the appellant did not seriously
    contest it. This satisfied the double criminality requirement on committal
    without reference to the fraud charge. The Canadian offence of possession of
    property obtained by crime, as specified in s. 354 of the
Criminal Code
,
    R.S.C. 1985, c. C-46, provides that:

Everyone commits an offence who has in his possession any property
    or thing or any proceeds of any property or thing knowing that all or part of
    the property or thing or of the proceeds was obtained by or derived directly or
    indirectly from

(a) the commission in Canada of an
    offence punishable by indictment; or

(b) an act or omission anywhere
    that, if it had occurred in Canada, would have constituted an offence
    punishable by indictment.

[10]

Section
    31.2 of the
Food and Drug Act
, R.S.C. 1985, c. F-27 provides that
    every person who contravenes any provision of the act or regulations is guilty
    of an indictable or summary conviction offence. The
Food and Drug
    Regulations
, C.R.C., c. 870 then provide for the licensing of persons who
    import drugs and requires that they apply for permits.
[1]

[11]

As
    such, the same conduct attributed to the appellant in the U.S. would have been
    criminal, and punishable by indictment, had it occurred in Canada. It is
    therefore not necessary to consider the sufficiency of the evidence relating to
    fraud, despite the potential gaps in the evidence relating to fraud as
    identified by the appellant.

[12]

Once
    the appellant was committed, the
Extradition Act
, S.C. 1999, c. 18, s.
    58(b) gave the Minister a broad discretion to describe the offence as the
    Minister saw fit  unfettered by any restraints in the ATP or the evidence in
    support of committal. The Supreme Court made this clear in
Canada (Justice)
    v. Fischbacher
,
2009 SCC
    46, [2009] 3 S.C.R. 170,at para. 41:

Nothing in s. 58(
b
) requires that the Minister match or
    align the surrender offence with that listed in the ATP or the committal
    order, nor with the evidence adduced at the hearing. In fact, quite the
    contrary: s. 58(
b
) provides the Minister with flexibility in crafting an
    order of surrender, and clearly contemplates that the wording of the surrender
    order may differ from that of the ATP and the order of committal

[Italics in original.]

[13]

Likewise,
    in
U.S.A. v. Barbu
,

2010 ONCA 891, at para. 37
,
    leave to appeal refused [2011] S.C.C.A. No. 66, this court cited the Supreme
    Courts decision in
Canada (Minister of Justice) v. Fischbacher
, 2009
    SCC 46, [2009] 3 S.C.R. 170, at para. 45 that: the words of the Act made it
    clear that as long as the conduct supports a Canadian offence, it does not
    matter what the offence might be or how the constituent elements are described
    in Canada. The person is liable to extradition. (citation omitted). There was
    no procedural unfairness in the Ministers surrender decision. The essence of
    the conduct described in the ATP and the Record of the Case was the same as in
    the surrender order  carrying on the business of selling pharmaceuticals and
    deliberately bypassing the American regulatory regime while doing so.

[14]

In
    summary, the appellant was properly committed on one of the charges in the ATP
    and the Minister did not act unfairly in exercising the discretion to surrender
    the appellant on charges of conspiracy.

[15]

The
    appeal and the application for judicial review are dismissed.

J.
    MacFarland J.A.

G. Pardu
    J.A.

M.L. Benotto J.A.

[1]

See ss. G.02.001 to G.02.003, for example.


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. Lillie, 2018 ONCA 133

DATE: 20180209

DOCKET: C59958

Feldman, Paciocco and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Harry Thomas Lillie

Appellant

Paul Alexander, for the appellant

Davin Michael Garg, for the respondent

Considered in writing: February 8, 2018

On appeal from the conviction entered on October 25, 2012
    and the sentence imposed on December 31, 2012 by Justice Richard Lococo of the Superior
    Court of Justice, sitting with a jury.

APPEAL BOOK ENDORSEMENT

[1]

As the appellant has passed away, the appeal is dismissed as abated.