R v JHl, 2014 NLCA 25

Date: 20140 528 Docket: 12/87 Citation: R v JHl, 2014 NLCA 25 Restriction on Publication: The proceedings in this case, including these reasons, are subject to an Order made under s. 486 of the Criminal Code that the identity of the complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: J.H. APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: Rowe, Harrington and Hoegg JJ.A.

Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division, 2012 NLTD (G) 0122 Appeal Heard: December 5, 2013 Judgment Rendered: May 28, 2014 Reasons for Judgment by Harrington and Hoegg JJ.A. Separate Concurring Reasons by Rowe J.A. Counsel for the Appellant: Randolph J. Piercey Q.C.

Counsel for the Respondent: Iain R. W. Hollett Harrington and Hoegg JJ.A.: INTRODUCTION [ 1 ] J.H. appeals his convictions for assault causing bodily harm, forcible confinement and sexual assault of L.P. For the reasons which follow, we would dismiss the appeal. PROCEDURAL HISTORY AND TRIAL EVIDENCE [ 2 ] The appellant J.H. and the complainant L.P. were in a relationship in December 2009. J.H. was employed in Alberta, but when he returned to this province during his time off work, he and L.P. spent most of their time together at her apartment in St.

John’s or in a community some distance away from the city. [ 3 ] On December 10, 2009, the appellant had returned home from Alberta and was together with L.P. at her apartment. The couple had not been getting along well and L.P. told J.H. that she wanted to end their relationship. L.P. said that J.H. responded badly and began slapping and punching her. She tried to escape by running outdoors, but J.H. ran outside and dragged her back in, ripping her clothing in the process.

L.P. testified that once they were back inside the apartment J.H. pushed her onto the couch and continued to physically assault her, and that he prevented her from leaving. She said that eventually she gave up resisting him because she wanted the assault to stop. L.P. said she remained confined to the apartment and sometime later went upstairs to bed with J.H. out of fear of further violence. She said that when they went to bed J.H. held her in an embrace and fell asleep. She did not sleep. She said about 90 minutes later J.H. awakened and forced her to have sexual relations.

She said that it was painful and unpleasant but she did not violently resist J.H. due to her fear of him. [ 4 ] L.P. said that at around 6:30 a.m. that morning, when J.H. left the bedroom to go downstairs to get her aspirin, she was able to use her cell phone to call her mother who lived in Mount Pearl. L.P.’s call was not answered, but her mother called back a few minutes later on the house phone. J.H., now back in the bedroom, answered and handed the phone to L.P.

L.P. said that her telephone conversation with her mother was cryptic due to J.H.’s presence, but when her mother asked if L.P. wanted her to come to L.P.’s apartment, L.P. said yes. The mother arrived a short while later. [ 5 ] J.H. testified that he and L.P. had not been getting along well and that night at the apartment she told him that she wanted to end their relationship. He said that this news caused him to have an “anxiety attack” which induced vomiting. He said that he and L.P. argued and when he was vomiting a second time L.P. left the apartment and went outside to go to a neighbor’s.

J.H. said that he looked outside and saw that L.P. had fallen, so he went out and brought her back into the apartment. He said she required assistance to get back on her feet and return to the apartment because she was intoxicated. J.H. said that as he was carrying L.P. inside, they fell down which caused L.P. to cut her lip. He admitted to pushing L.P. down onto the couch once back inside the apartment and to slapping her about the face and head with his open hands “to calm her down”.

He said that the other marks on L.P.’s body resulted from his having to defend himself from her violent behavior towards him after he had placed her on the couch. He testified that L.P. eventually calmed down and they went upstairs to bed a short while later, and when they awakened early in the morning they had consensual sexual intercourse. [ 6 ] The mother had no direct evidence to offer regarding the assaults of L.P. However, she corroborated her daughter’s evidence about the early morning phone call, saying that it was an unusual hour for L.P. to call her, and that the conversation had not made sense to her.

Consequently, she asked L.P. if something was wrong and if she needed her to come down. L.P. replied “yes”, so she got dressed and went to L.P.’s apartment. The mother said that upon her arrival she met J.H. in the driveway. When she inquired about L.P., J.H. told that her that L.P. was inside and that they were finished. The mother said that when she entered the apartment, L.P. was sitting on the chesterfield crying. When the mother saw L.P.’s face, she inquired what had happened, and L.P. told her that J.H. had done it.

The mother said she then confronted J.H., who admitted causing the injury to L.P.’s face “because she deserved it.” [ 7 ] J.H. acknowledged that he had been upset about L.P.’s desire to terminate their relationship because he believed that L.P. was involved with another man. J.H. said that when L.P.’s mother telephoned L.P. around 6:00 a.m. that morning he thought something was wrong because she would never have called that early. He gave L.P. the telephone and her mother arrived at the apartment shortly thereafter.

He said that he spoke with the mother outside as he was in the driveway when she arrived and that he told her that he and L.P. were finished. He said he followed the mother back into the apartment and that L.P. was sitting down crying. He denied telling L.P.’s mother that he hit L.P. because she deserved it. J.H. left shortly thereafter and drove to his brother’s home, some distance outside of St. John’s. [ 8 ] The incident was reported to the police that morning. They came to the apartment, took statements, and then took L.P. to St. Clare’s Hospital Emergency Department.

Later that day, and again a couple of days later, the police took photographs of L.P.’s injuries. [ 9 ] The photographs taken by the police depict numerous injuries to L.P. The trial judge listed the following ones at paragraph 29 of her decision: Photo #1- Swollen cheeks, black lip, swollen face. Photo #2 - Lip bruised on the inside. Photo #3 - Eyes red, swollen, bruised and lip bruised. Photos #5-7 - A bruised right arm. Photos #8-10 - A scratch on the upper area of the right arm.

Photo #14 - Abrasion to the right hip area. Photos #15 & 16 – Abrasion seen again but also bruising evident to the right of it. Photos 17-19 – Scratches and scrapes below the waist area. Photo 20 – The bruising below the red dotted prior knee injury. Photos 21 & 22 – A close-up of said bruising noted in Photo #20 below a previous injury. Photos 23 & 24 – Clear abrasions on the buttocks area. The trial judge noted that the later photographs showed face and body bruising on L.P. and two black eyes. [10] J.H. was arrested by the RCMP at his brother’s home later that day.

When the police approached the brother’s house, J.H. wasdriving an all-terrain vehicle (ATV) in a nearby park. One of the officers, Constable Crummey, spoke with J.H.’s brother, whotelephoned J.H. on the ATV to advise him that the police were there to see him and to return to speak with them. Constable Crummeyalso spoke with J.H. on the telephone and made the same request. The telephone conversation was cut off due to a poor connection, butConstable Crummey called him again and they conversed.

The officer testified that J.H. told him that L.P. had been cheating on him andthat he and L.P. had gotten into a fight the night before. As a result of their conversation, Constable Crummey formed the impressionthat J.H. could harm himself, so he communicated this information to Corporal Ellis and Constable Luther who were looking for J.H. inthe nearby park. [11] Officers Ellis and Luther saw J.H. driving his ATV in the park and beckoned him to come over to them. According to them,J.H. shook his head “no” and drove away from them.

Eventually J.H. drove to them and the officers conducted a “take down”, whichincluded the use of pepper spray and pushing J.H. off of his ATV. At trial, J.H. admitted telling Constable Crummey that he and L.P.had “got into it” the night before. He also acknowledged that he delayed driving over to officers Ellis and Luther as requested, sayingthat he took time to have a couple of cigarettes. However, he denied having tried to evade them and also denied that he had givenConstable Crummey cause to be concerned that he was going to harm himself.

J.H. admitted to the police that he had been drinking athis brother’s home before the police arrived. PRE-TRIAL APPLICATION [12] J.H. made a pre-trial application under

section 276 of the Criminal Code for permission to adduce evidence pertaining to anallegation of sexual assault which L.P. had made the previous year. The evidence put before the Court in support of the application wasthat L.P. had sought an emergency protection order (EPO) in relation to her former husband because he had sexually assaulted her (theEPO incident). J.H. applied for permission to cross-examine L.P. about the circumstances surrounding the EPO incident, and also to callL.P.’s former husband to refute L.P.’s anticipated testimony.

In addition, J.H. applied for permission to examine L.P. about their ownprior sexual relationship. [13] The trial judge decided the application just before the trial commenced and filed written reasons. She granted permission toJ.H. to cross-examine L.P. respecting certain aspects of their prior sexual relationship, but denied him the right to cross-examine herrespecting the EPO incident and the right to call her former husband to give evidence about it.

The trial judge found that the collateralevidence rule prevented J.H. from adducing evidence respecting the EPO incident, and also that J.H. had not established that hisproposed evidence ought to be admitted under the provisions of

section 276. THE DECISION [14] J.H. argued in his application that the allegations made against him by L.P. were “strikingly similar” to those she had madeagainst her former husband approximately a year before, and that these similarities suggested a pattern of fabrication going to motivewhich met the admissibility criteria of

section 276. He argued that evidence about the EPO incident suggested that L.P. was motivatedto falsely charge J.H. and lie to the police because experience had shown her that a complaint to the police was an effective way to ridherself of an unwanted partner.

J.H. contended that because L.P. was successful in getting her former husband out of her life and homeby applying to court for an EPO, she was motivated to invoke court proceedings in relation to J.H. in order to get him out of her life too. [15] The trial judge did not find striking similarities between the EPO incident and the matter before the Court, stating at paragraph28 of her reasons for decision on the application (2012 NLTD(G) 32): This submission falls into the commentary found at paragraphs 58 and 59 of R. v.

Darrach where the Court says it is common for thedefence in sexual offence cases to deny the assault occurred and/or to allege consent. The Court notes prior sexual activity will rarely berelevant to support a denial that sexual activity took place or to establish consent. I find the factual circumstances surrounding each ofthe two allegations of L.P. are distinctly different. Additionally, with regard to the complaint made against D.P. there was no allegationof aggravated assault or unlawful confinement.

The complainant did not sustain injury at or about the time of the alleged D.P. offence, asin the allegations made against J.H. I, therefore, conclude the similarities set out in paragraphs 9(

a) and 9(

b) are generic in nature andhave no strikingly similar features to them which would support the within application. [16] The trial judge found that the collateral evidence rule prevented J.H. from adducing evidence about the EPO incident. Shereasoned, relying on R. v. A.R.B. (1998), (ON CA), 41 O.R. (3d) 361, 128 C.C.C. (3d) 457 (Ont. C.A.) aff’d 2000SCC 30, [2000] 1 S.C.R. 781, that J.H.’s application was an attempt to replace the credibility contest between L.P. and J.H. with one inwhich L.P. would find herself in an adversarial position with not only J.H. but also with her former husband.

The trial judge pointed outthat J.H. was in no position to prove that L.P.’s allegation against her former husband was false, and ultimately decided that admittingevidence about the EPO incident would be “an attack on the general character of the complainant” which “would, in essence, subvert orprejudice the trial process resulting in a trial within a trial”.

[17] The trial judge also concluded that J.H.’s proposed evidence was not relevant to L.P.’s allegations against him, and that he wastherefore not entitled to adduce the evidence under

section 276. At paragraph 34 she said: My view of the application of J.H., herein, can be summed up in a manner similar to that used by Handrigan, J. in R. v. K.(K.), (NL SC), 2002 CarswellNfld 378, 224 Nfld. & P.E.I.R. 302: “… on its face that evidence is irrelevant, the allegationsinvolve separate and distinct delicts that should not be brought together.” I find the evidence which J.H. wishes to proffer in the trialproper not to be relevant to an issue at trial. Throughout his submission, J.H. has offered no satisfactory motive for L.P. to lie.

As notedin Darrach, an accused has never had the right to adduce irrelevant evidence, misleading evidence to support illegitimate inferences orevidence designed to distort the truth-seeking function of the trial process. The danger of prejudice to the proper administration ofjustice substantially outweighs the probative value of the proposed evidence. THE TRIAL DECISION [18] After several days of trial, the trial judge found J.H. guilty of the three charges.

The trial judge found that J.H. did not establishthat L.P. had a motive to lie, saying at paragraph 67 of the trial decision (2012 NLTD(G) 122): The accused clearly had a motive(

s) for his actions. The complainant, as he acknowledged, informed him that she was breaking up withhim. He wanted the relationship to continue. He informed Constable Crummey he believed the complainant was cheating on him. Onthe other hand the complainant wanted to end the relationship. No motive has been identified as to why she would charge the accusedwith the offences. [19] The trial judge filed a written decision in which she gave reasons for each of the convictions. After doing so, she stated thatsome evidence respecting J.H.’s post-offence conduct informed her overall assessment of his credibility.

The Appeal [20] J.H. appeals his convictions on the ground that the trial judge erred 1) in failing to permit him to adduce evidence respecting theEPO incident and 2) in relying on evidence respecting J.H.’s post-offence conduct to support her finding that his evidence lackedcredibility. J.H. did not appeal the trial judge’s decision respecting evidence of his and L.P.’s own prior sexual relationship. ISSUES [21] The issues for this Court are whether the trial judge erred by (

i) finding that the collateral evidence rule prevented J.H. from adducing evidence respecting the EPO incident; (ii) finding that J.H. did not meet his onus under

section 276 of the Code to have the EPO evidence admitted; and (iii) relying on evidence of J.H.’s post-offence conduct in assessing his credibility. ANALYSIS Admissibility of Evidence Respecting the EPO Incident [22] J.H. argues that the collateral evidence rule should not prevent admission of the EPO evidence because the EPO evidence goesto L.P.’s motive to falsely accuse J.H. which was relevant to his charges. He argues for this same reason that he has met theadmissibility requirements of subsections 276(2)(

b) and (

c) of the Code. [23] J.H. argues that the EPO evidence is relevant to L.P.’s motive to falsely charge J.H. because experience had taught her thatmaking a complaint to the police about her partner was an effective way for her to unilaterally terminate a relationship and keep herpartner away from her. J.H. relies on R. v. G.P. (1996), (ON CA), 31 O.R. (3d) 504, 112 C.C.C. (3d) 263 (Ont. C.A.)and R. v. S.G. (2007), (ON SC), 219 C.C.C. (3d) 549 (Ont. Sup.

Ct.) to support his position. [24] J.H. also argues that the trial judge erred in deciding that the EPO incident must be strikingly similar to the matter before thecourt in order for it to be admissible, and that her approach in this regard was “too formalistic”. (On this point, we note that J.H. appearsto have abandoned the position he argued on his pre-trial application that the EPO incident was strikingly similar to the matter before thecourt.) He further maintains that the reasoning of the trial judge is inconsistent because “she recognized that the termination of aromantic relationship could generate a motive on the part of J.H. to commit serious criminal acts against the complainant, yet was notwilling to let him lead evidence that L.P.’s prior complaint involving D.P. showed her motive to fabricate”.

The Crown’s Position [25] The Crown acknowledges that evidence respecting motive is not necessarily collateral and can be admitted in the propercircumstances. However, counsel argues that evidence respecting the EPO incident is not evidence of motive, that it is collateral, andthat it does not meet the criteria for admissibility under

section 276. The Crown relies on R. v. A.R.B., supra, and R. v. Riley (1992), (ON CA), 11 O.R. (3d) 151 (Ont.C.A.) to support its position. Discussion [26] Motive is reason for acting or behaving in a particular way to bring about a certain result. At page 831 of R. v. Lewis, (SCC), [1979] 2 S.C.R. 821 Dickson J. explained the meaning of motive in criminal law with reference to Glanville Williams’Criminal Law, The General Part (2nd ed., 1961): In ordinary parlance, the words "intent" and "motive" are frequently used interchangeably, but in the criminal law they are distinct ... Themental element of a crime ordinarily involves no reference to motive: 11 Hals. (4th ed., 1976), para. 11.

… Motive is ulterior intention—the intention with which an [intentional] act is done (or, more clearly, the inten​tion with which anintentional consequence is brought about). Intention, when distinguished from motive, relates to the means, motive to the end. (p. 48) [27]

Section 276 of the Code restricts the admissibility of evidence of a complainant engaging in other sexual activity by renderingit inadmissible if its purpose is to support an inference that; … by reason of the sexual nature of that activity, the complainant (

a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or (

b) is less worthy of belief.

(2) In proceedings in respect of an offence referred to in subsection (1), no evidence shall be adduced by or on behalf of the accused thatthe complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether withthe accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the proceduresset out in sections 276.1 and 276.2, that the evidence (

a) is of specific instances of sexual activity; (

b) is relevant to an issue at trial; and (

c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice… [28] In R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, the Supreme Court discussed the purpose and meaning of

section 276 inthe context of determining its constitutionality. The Court found the

section constitutional and stated that

section 276 is designed toprevent the use of evidence of prior sexual activity for improper purposes, and that in addition to excluding evidence going to the twinmyths, the

section serves to exclude evidence of trifling relevance which endangers the proper administration of justice. At paragraph 43Gonthier J. explains: …

Section 276 is designed to exclude irrelevant information and only that relevant information that is more prejudicial to theadministration of justice than it is probative. The accused’s right to a fair trial, is, of course, of fundamental concern to theadministration of justice … [29] In S.G. the accused was charged with sexual offences in relation to the young daughter of his girlfriend. In a video-tapedstatement, the young complainant had also alleged that another of her mother’s boyfriends had sexually assaulted her in the same manneras the accused in S.G. had. The accused argued that the complainant had fabricated both of her allegations and brought a

section 276application seeking permission to cross-examine her on the allegation not involving him, arguing that it was “objectively unlikely thattwo men, completely unknown to each other, would sexually assault the same person in a virtually identical manner”.

The trial judgeadmitted the proposed evidence under section 276(2), saying at paragraph 18 that “… this evidence is clearly relevant to thecomplainant’s motive to fabricate these allegations (of sexual assault)” and held that the proposed evidence had significant probativevalue which would not endanger the administration of justice. [30] The circumstances of S.G. are not akin to the circumstances of this case. They involve a very young complainant makingvirtually identical allegations against two of her mother’s boyfriends.

L.P. is an adult who made substantially different allegations inrelation to two separate and distinctly different incidents. [31] In G.P. the accused testified that the complainant, who alleged that she had been sexually assaulted, was motivated to lie inretaliation for the accused’s spurning of her mother. The Crown sought to call the mother to rebut the evidence of the accused abouttheir relationship, which the trial judge permitted. The accused appealed, alleging that the mother’s evidence ought not to have beenadmitted because it was collateral.

At paragraph 28 of its decision, the appellate court explained why the mother’s rebuttal evidence wasnot collateral: The admission of the evidence of Ms. M. in reply did not offend the collateral fact rule. As part of the defence case, the appellant wasentitled to lead evidence to show that Ms. P. had a motive for falsely testifying and for putting her daughter up to making a falseallegation: see R. v. Busby (1982), 75 Cr. App. R. 79 (C.C.A.); R. v. Shaw (1888), 16 Cox C.C. 503. The appellant’s evidence, ifbelieved, cast the relationship between him and Ms. P. in an entirely different light.

That evidence not only contradicted Ms. P. butprovided a motive on the part of Ms. P. to fabricate her evidence. The Crown was then entitled to lead evidence, if it had any, torehabilitate its witness by showing that she did not have the motive to fabricate alleged against her. The motive of the complainant tofalsely charge the appellant was an essential element of the case. It was central to the theory of the defence and as the case wasdeveloped by the defence the relationship between Ms. P. and the appellant related to that question.

Viewed this way, evidenceconcerning motive to fabricate could not be collateral: see R. v. M. (G.W.) (1990), (ON CA), 58 C.C.C. (3d) 349 atpp. 351-52, 41 O.A.C. 126 (C.A.). [32] In A.R.B., the accused, who was charged with various sexual offences, had sought at trial to cross-examine the complainant ondetails of her allegations against other persons and to call those other persons to testify to refute her anticipated testimony. The trialjudge found the evidence to be collateral and irrelevant to the matters before the Court.

The Ontario Court of Appeal agreed, sayingwhether the complainant was sexually assaulted by other persons engages the rule against collateral facts and is subject to the generaldiscretion of a trial judge to exclude such evidence where its probative value is outweighed by its prejudicial effect.

The Court statedthat prejudice to the trial process is to be considered in addition to the prejudice that might arise with respect to any party or witness to theproceeding, and also that permitting evidence that the complainant had engaged in sexual activity other than the sexual activity thatformed the subject matter of the charges before the Court was inimical to the spirit of

section 276. The Supreme Court of Canada upheld

the appellate court’s decision. [33] Collateral evidence is evidence which depends for its relevance on the fact that it contradicts a witness. (See A.G. v. Hitchcock(1847), 154 E.R. 38 (Ex. Ch.).) The mischief the collateral evidence rule seeks to avoid was discussed in A.R.B. and described atparagraph 9 of Riley as follows: ... The problem of proving falsity in these circumstances is considerable.

To have [a third party] testify that her complaint to theauthorities about him was false, would only introduce a collateral issue of credibility which would be as difficult to resolve as thosecontained in the complaints of which the trial judge was seized. Even if we had a proper record of [the third party]’s trial, a not guiltyverdict, standing by itself, could not establish that the prosecution was based on fabricated testimony by the complainant. [34] In this case, there is no complete record of the EPO proceeding.

Even if there were, it would not establish the veracity of L.P.’sallegation against her former husband, and it would not assist in proving the truthfulness of L.P.’s allegations against J.H.. (See also R.v. Ryan, 2011 NLCA 53, 310 Nfld. & P.E.I.R. 116, and R. v. G.M., 2013 SCC 24, [2013] 2 S.C.R. 202, adopting the dissent in R. v.G.M., 2012 NLCA 47, 325 Nfld. & P.E.I.R. 1, for discussion and application of the collateral evidence rule by this Court.) [35] Admission of the evidence respecting the EPO incident in this case depends for its relevance on the fact that it would contradictL.P.

It would serve no other purpose than to impugn her general credibility by creating another contest respecting the truth of herallegations grounding her EPO application. As such, it would be a “trial within a trial”, the objective of which would be to suggestwithout proof, that if her previous allegation against her husband were untrue, a reasonable doubt may arise respecting the truth of herallegations against J.H..

J.H.’s argument is the same as the one made by the accused in A.R.B., where the proposed evidence wasrejected as collateral and because its probative value was outweighed by its prejudicial effect. [36] In our view, the proposed EPO evidence is collateral for its only relevance depends on the fact that it would contradict L.P. Weare not persuaded that J.H.’s proposed evidence concerning the EPO incident sufficiently relates to motive so as to make it potentiallyrelevant and admissible. [37] J.H. applied to adduce the EPO evidence pursuant to

section 276 of the Code. The

section 276 procedure has been used to seekadmission of otherwise inadmissible evidence on the basis of its relevance or probative value as is comprehensibly explained in R. v.M.T., 2012 ONCA 511, 95 C.R. (6th) 223. In M.T. the accused sought to adduce evidence of allegations by the complainant that she hadbeen sexually assaulted by someone other than the accused. Watt J.A. explained how this proposed evidence was irrelevant undersection 276(2)(

b) and that he would not intervene with the trial judge’s discretion to, after analysis, exclude it under section 276(2)(c). He described the essence of the appellant’s argument and why it did not prevail at paragraphs 52 to 54 of the decision: Reduced to its essence, the appellant’s argument is that a complainant who accuses two persons of sexual impropriety occurring atdifferent times and in different circumstances is more likely to be lying about either or both than a complainant who accuses only oneperson. This reasoning brushes uncomfortably close to what s. 276(1)(

b) proscribes and is countermanded by binding precedent: Riley, atp. 154. Even without the statutory framework of 276, this evidence would be inadmissible under the ordinary rules of evidence because it lacksrelevance. It is a basic evidentiary principle that irrelevant evidence will be excluded. No party, including an accused, has any right toadduce irrelevant evidence: R. v. Cloutier, (SCC), [1979] 2 S.C.R. 709, at pp. 730-731; Darrach, at para. 37.

Finally, the admission of the proposed evidence was a matter that involved a fact-sensitive analysis by the trial judge under s. 276(2)(c)in light of the considerations enumerated in s. 276(3): Darrach, at para. 71. His exercise of the inclusionary discretion for which thesubsection and paragraph provide is entitled to substantial deference in this court. I would not interfere with its exercise. Nevertheless, we find that it is not necessary to resort to the

section in this case because the proposed EPO evidence is collateral andinadmissible in any event. If

section 276 were engaged, the EPO evidence would not likely be admissible because it would not meet therelevance requirement of subsection 276(2)(

b) nor the subsection 276(2)(

c) requirement that its significant probative value mustoutweigh the danger of prejudice to the administration of justice. (See also the reference to

section 276 at paragraph 10 of A.R.B. (Ont.C.A.)) [38] In this case there was no support for the notion that L.P. was motivated to falsely charge J.H. with criminal offences in order toterminate their relationship, and no support for such a motive has been advanced on appeal.

L.P.’s evidence that J.H. beat, confined andsexually assaulted her, corroborated by photographs of her injuries, her ripped clothing, the testimony of the police witnesses who tookher to the hospital, the testimony of L.P.’s mother, and J.H.’s admissions to carrying L.P. back into the apartment against her will and toslapping her face, strongly contradict J.H.’s motive argument. [39] In the result, the trial judge did not err in refusing to permit J.H. to adduce evidence from L.P. and her former husband inrelation to the EPO incident.

Reliance on Evidence of Post-offence Conduct [40] At trial, the Crown argued that J.H.’s telephone statements to Constable Crummey and J.H.’s driving behaviour just prior to hisarrest could assist the trial judge in assessing J.H.’s credibility. [41] The trial judge agreed with the Crown’s position on the use she could make of this evidence, saying at paragraphs 61 and 62 ofher decision:

The post-offence conduct of the accused can be considered as circumstantial evidence to be weighed along with all of the body ofevidence entered at trial. Based on both the accused’s telephone conversation with Constable Crummy and his reluctance to obey thecommands of Constable Luther and Corporal Ellis, at the point of pre-arrest, I am satisfied the evidence ought to be considered in anassessment of the accused’s overall credibility. The actions of the accused are consistent with an individual who realizes he hascommitted a wrong and is reluctant to face the consequences. Neither the evidence of the accused’s brother nor [a mental healthcounsellor] provide for any other reasonable

interpretation [as] regards the statements of the accused to Constable Crummy and hismanner of dealing with the police. … In arriving at the determinations set forth earlier with regard to the three offences alleged, I have considered the post-offence conduct inthe manner stated in the foregoing paragraph.

In the result, it, along with the other evidence tendered, has served to undermine thecredibility of the accused in his denial of commission of the offences. [42] J.H.’s telephone statements are that he told Constable Crummey that L.P. had been cheating on him and that they had beendrinking and had fought the previous night.

J.H.’s driving behaviour at issue is that he had shaken his head “no” and driven away fromofficers Ellis and Luther and toward the water when they requested he drive over to them in the park. [43] The Crown’s position is that the evidence of J.H.’s statements and driving behavior at the time of his arrest is the same as theother circumstantial evidence in the case, and that the trial judge was entitled to use it to inform her credibility assessment of J.H..

TheCrown also argues that the evidence of J.H.’s post-offence conduct can be objectively assessed and that it is not susceptible to subjectiveinterpretation in the same way post-offence demeanor evidence is. [44] J.H. alleges that the trial judge failed to treat the post-offence conduct evidence with caution, as he says she was required to do,and also that she failed to consider J.H.’s evidence when she concluded that the post-offence conduct evidence could inform hercredibility assessment of him. He argues that these errors justify the ordering of a new trial.

Discussion [45] We disagree with J.H.’s allegation that the trial judge erred by not considering his evidence. J.H. did not deny that he said toConstable Crummey that he and L.P. had been drinking and had “gotten into it” the previous night, nor did he deny that he drove awayfrom officers Ellis and Luther before deciding to come out of the park.

Although J.H. did deny shaking his head “no” to the officers,saying that he waved to them to say he was coming, it is clear from the trial judge’s decision that she accepted the testimony of officersEllis and Luther that J.H. indicated refusal to respond to their request to come out of the park. The trial judge noted that nothing said byJ.H.’s brother or his counsellor Ms. Wanda Green provided for any other reasonable

interpretation of the post-offence conduct evidencethan the one she arrived at. [46] The law respecting post-offence conduct evidence is set out in R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433. Mr. White wascharged with murder for having shot a man. He was described by Crown counsel in his closing argument to the jury as having fled fromthe scene after the shooting with “no hesitation, shock, no uncertainty.” By the end of the trial Mr. White had conceded that he wasguilty of manslaughter. Nevertheless, the jury convicted him of second degree murder. [47] Mr.

White appealed his conviction, arguing that the trial judge’s instruction to the jury on the relevance of Crown counsel’swords could have invited them to infer murderous intent. The British Columbia Court of Appeal dismissed his appeal, as did theSupreme Court of Canada. [48] The Supreme Court judgment comprises three opinions.

However, all the judges agreed on the law respecting evidence of post-offence conduct, and that it is not subject to any rule of admissibility or special warnings as to the use it may be put by the trier of fact. [49] In White, Rothstein J. says that the concern which has animated development of the law regarding post-offence conductevidence is that “[j]urors may be tempted to “jump too quickly from evidence of post-offence conduct to an inference of guilt” (White1998, at para. 57) without giving proper consideration to alternate explanations for the conduct in question” (paragraph 23).

Headdresses admissibility of post-offence conduct evidence at paragraph 31: Given that “[e]vidence of post-offence conduct is not fundamentally different from other kinds of circumstantial evidence”, theadmissibility of evidence of post-offence conduct and the formulation of limiting instructions should be governed by the same principlesof evidence that govern other circumstantial evidence.

In particular, to be admissible, such evidence must be relevant to a live issue and itmust not be subject to a specific exclusionary rule (e.g. the hearsay rule); it may also be excluded pursuant to the exercise of a recognizedjudicial discretion (D. M. Paciocco and L. Stuesser, The Law of Evidence (5th ed. 2008), at p. 26), such as the discretion to excludeevidence whose prejudicial effect outweighs its probative value.

These same principles also determine the need for and scope of alimiting instruction. and he explains the function of cautions at paragraph 56: A warning or caution does not serve to remove the evidence from the jury’s consideration. Instead, providing a caution allows for juriesto benefit from judicial experience concerning the risks associated with certain types of evidence, while respecting the jury’s competencein fulfilling its fact-finding role. The point is that once jurors are alerted to the risks that are not necessarily apparent to the averagecitizen, they can be trusted to properly weigh the evidence.

Our jury system is predicated on the conviction that jurors are intelligent andreasonable fact-finders. It is contrary to this fundamental premise to assume that properly instructed jurors will weigh the evidenceunreasonably or draw irrational and speculative conclusions from relevant evidence. I agree with the view expressed by Dickson C.J., inR. v. Corbett, (SCC), [1988] 1 S.C.R. 670, that “it would be quite wrong to make too much of the risk that the jurymight use the evidence for an improper purpose. This line of thinking could seriously undermine the entire jury system … (p. 692(emphasis in original)).

Prior to White, the Supreme Court had addressed the issue of post-offence conduct evidence in R. v. Arcangioli, (SCC),[1994] 1 S.C.R. 129, and R. v. White, (SCC), [1998] 2 S.C.R. 72. Like White (2011), supra, White (1998) andArcangioli involved whether and what type of instructions the respective trial judges ought to have given to their juries. [50] The Supreme Court jurisprudence shows that the concept of caution respecting the use of post-offence conduct evidence hasdeveloped in the context of jury trials. This case was heard by a judge alone.

This distinction goes to the crux of J.H.’s argument that atrial judge sitting alone must “cautiously” consider post-offence conduct evidence and that the trial judge in this case did not do so. While J.H. asserts that the trial judge was not cautious in her assessment of the post-offence conduct evidence, he does not point toanything in the record to support this assertion.

His submission appears to be based on the notion that because the trial judge did notstate she was being cautious, she must not have been so. [51] The treatment of post-offence conduct evidence by trial judges sitting alone has been considered by the Manitoba and OntarioCourts of Appeal. In R. v. Gagnon, 2006 MBCA 125, 208 Man. R. (2d) 213, the appellant appealed his conviction for break and entryon the basis that the trial judge had erred in inferring guilt from Mr. Gagnon’s post-charge escape from custody.

Hamilton J.A. for theManitoba court commented on the trial judge’s use of the post-offence conduct evidence at paragraph 42: Post-offence conduct can take many forms, which include a hot pursuit, but is not restricted to that. Post-offence conduct is not a specialcategory of evidence; rather, it is circumstantial evidence to be considered with other relevant evidence. and she concluded that the trial judge did not err in linking the escape to the break-ins because “[t]hat was a finding of fact that [the trialjudge] was entitled to make” (paragraph 41). [52] In R. v. Teske (2005), (ON CA), 32 C.R. (6th) 103 (Ont.

C.A.), the appellant appealed his conviction for thesecond degree murder of his wife. At trial, he had admitted to causing his wife’s death, to cremating her body and to dumping herremains in a ditch. However, he maintained that her death was accidental. The trial evidence had also established that the appellant hadcleaned his home to remove evidence, had cleaned the cremation site and had misled the police in their investigation of his wife’sdisappearance. [53] The trial judge inferred from Mr.

Teske’s post-offence conduct that he had created an elaborate cover-up of what he had doneso as to develop an innocent explanation for his wife’s disappearance, and that this evidence supported a verdict of murder rather thanmanslaughter.

The Ontario Court of Appeal agreed and dismissed the appeal, saying “[a]s a matter of common sense, it is reasonable toinfer that someone who destroys a body after causing the death of that person does so because he knows that the victim suffered injuriesthat are inconsistent with a non-intentional cause of death” (paragraph 86). [54] In writing for the Court, Doherty J.A. summarized the history and status of post-offence conduct evidence at paragraphs 84 and85: I do not think that any helpful generalization can be made about the potential relevance of after-the-fact conduct evidence.

Counsel'sposition on behalf of the appellant is, however, understandable. Canadian courts, alone to my knowledge among common lawjurisdictions, under the rubric "consciousness of guilt", developed an elaborate and confusing jurisprudence as to the proper instruction tobe given to juries where the Crown relied on after-the-fact conduct of an accused to prove its case. That jurisprudence suggested that"consciousness of guilt" evidence was subject to its own set of special rules: R. v. Burdick (1975), (ON CA), 27C.C.C. (2d) 497 at 506 (Ont. C.A.); R. v.

Marinaro, (SCC), [1996] 1 S.C.R. 462, 105 C.C.C. (3d) 95 (S.C.C.), adoptingthe dissenting reasons of Dubin C.J.O. (1995), (ON CA), 95 C.C.C. (3d) 74 at 82 (Ont. C.A.). More recent case law has, however, recognized that after-the-fact conduct evidence is simply a species of circumstantial evidence. Theevidentiary value of this evidence depends on the reasonable inferences that a trier of fact can draw from it when considered in thecontext of the entirety of the evidence and the issues raised at trial: R. v. Peavoy (1997), (ON CA), 117 C.C.C. (3d)226 at paras. 23-35 (Ont. C.A.); R. v.

White, (SCC), [1998] 2 S.C.R. 72, 125 C.C.C. (3d) 385 at paras. 19-35 (S.C.C.);R. v. Trochym (2004), (ON CA), 186 C.C.C. (3d) 417 at paras. 16-25 (Ont. C.A.), leave to appeal to the SupremeCourt of Canada granted, [2005] S.C.C.A. No. 16. Some after-the-fact conduct will, as a matter of common sense and human experience,when viewed in the context of the entirety of the evidence, be reasonably capable of supporting an inference as to an accused's state ofmind at the time of the homicide in issue: R. v. MacKinnon (1999), (ON CA), 132 C.C.C. (3d) 545 at paras. 14-16(Ont. C.A.); R. v.

Poitras (2002), (ON CA), 57 O.R. (3d) 538 at para. 11 (Ont. C.A.). (Emphasis added.) [55] In both Gagnon and Teske, appellate review of the treatment of post-offence conduct evidence by the respective trial judges wasbased on whether the inferences they drew from it were reasonable. [56] We have not been shown, nor have we been able to find, any authority for the contention that a trial judge sitting alone mustarticulate a self-caution when considering post-offence conduct evidence. This is doubtless because judges are presumed to be cautiouswhen assessing evidence.

In fact, it is judges who are responsible for identifying the need for cautioning juries with respect to thepitfalls of drawing irrational or unreasonable inferences from certain evidence. Judges are expected to draw only reasonable inferencesfrom evidence, and they must be presumed to know and apply this law unless the record demonstrates otherwise. This principle wasrestated by Chief Justice McLachlin in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 at paragraphs 19 and 20: The judge need not expound on matters that are well settled, uncontroversial or understood and accepted by the parties.

This applies toboth the law and the evidence. Speaking of the law, Doherty J.A. states in Morrissey, at p. 524: Where a case turns on the application of well-settled legal principles to facts as found after a consideration of conflicting evidence, thetrial judge is not required to expound upon those legal principles to demonstrate to the parties, much less to the Court of Appeal, that heor she was aware of and applied those principles.

Similarly the trial judge need not expound on evidence which is uncontroversial, or detail his or her finding on each piece of evidence or controverted fact, so long as the findings linking the evidence to the verdict can be logically discerned. [ 57 ] This is not to say that the presumption of knowledge and correct application of the law relieves trial judges from review of the inferences they draw from evidence. In fact, if trial judges draw unreasonable inferences from evidence, the law provides for correction on appeal.

Inferences drawn by a trial judge from evidence will be reversed if they are found to be “clearly wrong, unsupported by the evidence or otherwise unreasonable” and “shown to have affected the result” ( R. v. Clark , 2005 SCC 2 , [2005] 1 S.C.R. 6, para. 9 ). [ 58 ] In H.L. v. Canada (Attorney General) , 2005 SCC 25 , [2005] 1 S.C.R. 401 at para. 74 the Court explained that a trial judge is entitled to draw an inference from proven facts as long as it is reasonable, and the inference drawn does not have to be the only inference capable of being drawn from the evidence: ...

Not infrequently, different inferences may reasonably be drawn from facts found by the trial judge to have been directly proven. Appellate scrutiny determines whether inferences drawn by the judge are “reasonably supported by the evidence”. If they are, the reviewing court cannot reweigh the evidence by substituting, for the reasonable inference preferred by the trial judge, an equally ‒ or even more ‒ persuasive inference of its own. This fundamental rule is, once again, entirely consistent with both the majority and the minority reasons in Housen . (Emphasis in original.) (See also R. v.

Vokurka , 2013 NLCA 51 , 339 Nfld. & P.E.I.R. 248 at paras. 24 , 25 and 45, affirmed by the Supreme Court of Canada in 2014 SCC 22 .) [ 59 ] In cases involving the treatment of post-offence conduct evidence by a trial judge sitting alone, review must focus on whether the trial judge drew an unreasonable inference from the evidence, and if so whether it affected the judge’s decision.

Accordingly, the issue in this case is whether it was reasonable for the trial judge to infer from J.H.’s words and driving actions that he realized he had committed a wrong and was reluctant to face the consequences. [ 60 ] We are of the view that, in the context of this case, the trial judge’s inference at paragraph 61that the words and actions of J.H. “are consistent with [those of] an individual who realizes he has committed a wrong and is reluctant to face the consequences,” was not unreasonable.

J.H.’s driving behaviour preceding his arrest can reasonably be regarded as showing that he knew he had committed a wrong and was reluctant to face the consequences. Likewise, it is reasonable to infer that J.H.’s references to his and L.P.’s relationship difficulties and the fact that they “had gotten into it” the previous night are consistent with the charges.

The fact that these inferences are not the only ones that the trial judge could have drawn does not make them unreasonable ( H.L. and Vokurka ). [ 61 ] The trial judge convicted J.H. of each of the three offences charged, rejecting, with reasons, J.H.’s evidence respecting each of them. She then stated that she had considered the post-offence conduct evidence in her overall assessment of the credibility of J.H.’s denials of the charges at trial.

The trial judge’s reasoning respecting each of the three convictions shows that she regarded J.H.’s post- offence conduct as only one of many factors influencing her assessment of his credibility. While the evidence may have been of limited probative value, she was entitled to consider it as she did. [ 62 ] In the result, the trial judge did not err in using the post-offence conduct evidence to inform her credibility assessment of J.H.. Disposition [ 63 ] In

summary, the trial judge did not err in excluding the proposed evidence respecting the EPO incident. She correctly determined the proposed evidence to be collateral and inadmissible. Neither did the trial judge err in using the post-offence conduct evidence to inform her assessment of J.H.’s credibility. [ 64 ] In the result, we would dismiss J.H.’s appeal. ______________________________ M. F. Harrington J.A. ______________________________ L. R. Hoegg J.A. Concurring Reasons by Rowe, J.A. [ 65 ] I agree with my colleagues as to the disposition of the issues in this case and the result as set out in paragraphs 64-65 (save as regards

section 276 of the Criminal Code , as explained below). However, my concurrence goes no further. In their analysis, my colleagues have written extensively, engaging aspects of the law not necessary for the disposition of this case. I will make only a few comments.

[ 66 ] First, concerning the matters dealt with by my colleagues in paragraph 36, it may be uncommon, but it is not unknown for someone to make a false complaint to police in order to seek to harm or manipulate the person against whom the complaint is made. If done cleverly, it has the potential to be quite effective. [ 67 ] That said, I agree that the evidence regarding the EPO incident was properly excluded under the collateral evidence rule. Dealing with it could well involve extensive testimony, creating a “trial within a trial”, to very limited probative effect. I say nothing about

section 276 of the Code ; rather, I would rely solely on the collateral evidence rule. [ 68 ] Regarding post-offence conduct, the evidence was of limited probative value. Much of J.H.’s conduct was ambiguous. Is not a reluctance to deal with police also consistent with someone who is falsely accused? However, taken overall, I cannot say that the judge erred when she drew negative inferences from J.H.’s post-offence conduct. _________________________________ M. H. Rowe J.A.