HIS MAJESTY THE KING APPELLANT AND: C.L. RESPONDENT, 2022 NLCA 53

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation : R. v. C.L. , 2022 NLCA 53 Date : September 15, 2022 Docket Number : 202101H0041 PUBLICATION BAN: Section 110(1) of the Youth Criminal Justice Act respecting non-publication of the identity of a person as having been dealt with under this Act applies to this judgment. PUBLICATION BAN: Section 111(1) of the Youth Criminal Justice Act respecting non-publication of the identity of a child or young person as being a victim or witness in connection with an offence alleged to have been committed by a young person applies to this judgment.

BETWEEN: HIS MAJESTY THE KING APPELLANT AND: C.L. RESPONDENT Coram: Hoegg, Goodridge and Butler JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador St. John’s Appeal Heard: April 11, 2022 Judgment Rendered: September 15, 2022 Reasons for Judgment by: Goodridge J.A. Concurred in by: Hoegg and Butler, JJ.A. Counsel for the Appellant: Kathleen O’Reilly Counsel for the Respondent: Taylor R. Starrett Authorities Cited:

CASES CITED: R. v. J.M.H., 2011 SCC 45, [2011] 3 SCR 197; R. v. Barton, 2019 SCC 33, [2019] 2 SCR 579; R. v. A.R.D., 2017ABCA 237, aff’d 2018 SCC 6, [2018] 1 SCR 218; R. v. Lacombe, 2019 ONCA 938; R. v. D.R., 2022 NLCA 2; R. v. Greif, 2021 BCCA187; R. v. Seaboyer, (SCC), [1991] 2 SCR 577; R. v. G.F., 2021 SCC 20; R. v. Robertson, (SCC),[1987] 1 SCR 918; R. v. Osolin, (SCC), [1993] 4 SCR 595; R. v. Ewanchuck, (SCC), [1999] 1 SCR330; R. v. Salai, 2007 ABCA 30; R. v. Graveline, 2006 SCC 16, [1991] 1 SCR 609; R. v. W.(D.), (SCC), [1991] 1 SCR742.

STATUTES CONSIDERED: Criminal Code, RSC 1985, c C-46, sections 150.1(2.1), 273.2(b), 276, 278.93, 278.94. Goodridge J.A.: [1] C.L. was acquitted on a charge that he sexually assaulted a 15-year-old female complainant. C.L. was 17 years old at the time.The Crown appeals the acquittal. [2] The issue at trial was consent. In acquitting C.L., the trial judge found that the Crown failed to establish that the complainantwas not consenting. [3] C.L. admitted that he had vaginal intercourse with the complainant but maintained that she had consented.

Pursuant to section150.1(2.1) of the Criminal Code, RSC 1985, c C-46, it is a defence that a complainant, 14 years of age or more but under 16, consentedif the accused (as here) is less than five years older than the complainant. [4] The Crown argues that the trial judge made errors of law in concluding that the Crown failed to establish that the complainantwas not consenting.

The alleged errors include: (1) relied on discredited myths and stereotypes when assessing the complainant’scredibility, (2) considered C.L.’s perception when addressing the complainant’s subjective state of mind respecting consent for the actusreus, (3) applied an incorrect analysis of the mens rea for sexual assault when addressing the defence of honest but mistaken belief incommunicated consent, (4) relied on a non-verbal gesture of the complainant while she was on the witness stand when deciding whetherthe complainant was consenting to intercourse, and (5) admitted evidence of prior communications made for a sexual purpose. [5] For the reasons that follow, I agree that the trial judge made errors of law and that the errors had a material bearing on theacquittal.

I would allow the appeal and order a new trial. ISSUES [6] The issues are whether the trial judge made one or more of the alleged errors of law, and if so, whether that had a materialbearing on the acquittal. STANDARD OF REVIEW [7] “It is only where a reasonable doubt is tainted by error of law that appellate intervention in an acquittal is permitted”, R. v.J.M.H., 2011 SCC 45, [2011] 3 SCR 197, at para. 39. To succeed on this appeal, the Crown must identify the error of law, and mustestablish a nexus between the error and the acquittal. BACKGROUND [8] The complainant and C.L. were friends.

On the evening of July 27, 2019, the two were out for a drive together and went backto the complainant’s home at 11:10 PM. C.L. says he was invited in to see a kitten that the complainant had just adopted. Thecomplainant says he was invited in to see the home interior as her father had offered C.L. a room in the basement as possible temporaryaccommodation if he needed a place to ‘crash’ for a night. The complainant knew her parents were out for the evening, and knew shewas not permitted to have male guests in the home when her parents were out.

Once inside the home, the complainant showed C.L.around and ended the tour in her bedroom where the new kitten was located. At this point, the testimony of C.L. and the complainantdiverges. [9] The complainant testified that C.L. pulled her onto the bed and proposed sexual intercourse, “[he] told me we should foolaround and that I should go grab a condom from my brother’s [bed]room” (Transcript, March 31, 2021, at 17).

The complainant says shereplied “no” and told C.L. to leave (Transcript, March 31, 2021, at 17), but he proceeded to slide his hand inside her clothing, digitallypenetrate her vagina, remove her shorts, and engage in vaginal intercourse. The complainant recalled that C.L. repeated his request thatshe get a condom at least once, and she repeated her objections by telling C.L. to stop. The objections were ignored as C.L. knelt betweenthe complainant’s legs, held her “by [my] arms down on the bed” (Transcript, March 31, 2021, at 21), and engaged in vaginalintercourse.

The complainant said, “I was trying to fight him the whole time but I couldn’t because when I did … he pushed me back onthe bed” (Transcript, March 31, 2021, at 21); “I told him to stop, and no, [that] I didn’t want this, and he didn’t [stop]” (Transcript,March 31, 2021, at 49). C.L. left the house almost immediately after ejaculation; the complainant says she remained on the bed for atleast another 10 minutes, unable to move and crying uncontrollably (Transcript, at 22). [10] C.L.’s testimony described a significantly different interaction.

He said that he and the complainant were sitting on her bedpetting the kitten and this relatively innocent activity quickly transitioned into him and the complainant lying on the bed while cuddling,kissing, and fondling each other. C.L. maintained that there was no discussion of condoms and no verbal communication of any naturepreceding the sexual intercourse. C.L. testified that he removed the complainant’s shorts and she cooperated by lifting her waist. Afterpenetrating her vagina with his penis, C.L. claims the complainant directed him to continue, “Just after we had started having sex, I asked

her if she wanted to stop, and she said no, to keep going” (Transcript, April 1, 2021, at 91). C.L. says there were no words or actionsfrom the complainant to signal a lack of consent. C.L. agrees that he left the house almost immediately after ejaculation, but says that thecomplainant was not upset and walked with him to the front door (Transcript, April 1, 2021, at 92). Analysis Reliance on discredited myths and stereotypes [11] The Crown’s position is that the judge erred by relying on myths and stereotypes about sexual assault. To paraphraseMoldaver J. in R. v.

Barton, 2019 SCC 33, [2019] 2 SCR 579, our society has yet to come to grips with just how deep-rooted some ofthese myths and stereotypes are and just how devastating their consequences can be when responding to allegations of sexual assault.Moldaver J. stated, at paragraph 1, of Barton, “eliminating myths, stereotypes, and sexual violence against women is one of the morepressing challenges we face as a society.” [12] Addressing this challenge, courts in Canada have made it clear that reliance on discredited myths and stereotypes in assessing acomplainant’s credibility in a sexual assault trial will be an error of law (R. v.

A.R.D., 2017 ABCA 237, at para. 9, aff’d 2018 SCC 6,[2018] 1 SCR 218; R. v. Lacombe, 2019 ONCA 938, at para. 33; and R. v. D.R., 2022 NLCA 2, at para. 17). However, it is not the casethat evidence capable of being relied upon to support a myth or stereotype is necessarily being used for that purpose. Where theevidence is adduced to support a permissible inference, it is not an error for a trier of fact to rely on that evidence in assessing a witness'scredibility. This point was made by MacKenzie J.A. writing for a unanimous panel in R. v.

Greif, 2021 BCCA 187: [62] While avoiding reliance on myths and stereotypes is essential to the pursuit of a more just criminal justice system, it is not the casethat evidence capable of being relied upon to support a stereotypical assumption is necessarily being used for that purpose.

Where theevidence is adduced to support a permissible inference, it is not an error for a trier of fact to rely on that evidence in assessing a witness'scredibility. … [65] Nor is it an error for a judge to come to a conclusion that may align with a stereotypical expectation where that conclusion is drawnfrom the evidence in the record, rather than an unsupported assumption or generalization about how an individual would be expected tobehave … (Emphasis in original.) [13] Hoegg J.A., writing for the majority, made a similar point in D.R.: [33] While judges and courts must be able to take a broad view of the evidence in their search for the truth in any given case, they musttake care to ensure that the inferences they draw from the evidence are rooted in the evidence, and not in stereotypes or myths about howvictims should or should not act. … [14] In this matter, the trial judge did rely, in her credibility assessment, on various discredited myths and stereotypes that were notgrounded in the evidence.

This was an error of law. [15] R. v.

Seaboyer, (SCC), [1991] 2 SCR 577, at 651-653, lists some discredited myths and stereotypes, such as,silence is consent, a woman can prevent a rape if she really wants to, and a woman may seek revenge on past lovers. [16] C.L. testified that the complainant remained silent during the fondling and the initial stages of sexual intercourse; that she saidnothing to communicate consent prior to the sexual intercourse; and that she was not visibly upset immediately after the sexualintercourse. [17] The complainant testified that she was not silent, but was forceful and vocal with her protests, stating, “no” and “stop”. [18] The two versions of the event did not reconcile. [19] The judge found that the complainant’s version was not credible, reasoning that if she had spoken up then C.L. would havestopped, “[I]f [the complainant] was being forceful and consistently saying no, it would have been a departure from her normal demeanorand it could not have been ignored by [C.L.]” (Transcript, May 31, 2021, at 218).

C.L. had testified that the complainant had a quietdemeanor (Transcript, April 1, 2021, at 98). The inference made by the trial judge – that C.L. would have stopped had the complainantspoken up – does not logically flow from evidence that the complainant had a quiet demeanor; it is a conjecture and it is not rooted in theevidence. Instead, it is rooted in the impermissible myth that silence is consent.

It is reasoning that engages the error of law discussed byMoldaver J. at paragraph 98 of Barton, that a woman who remains silent is implicitly consenting, “it is an error of law — not fact — toassume that unless and until a woman says "no", she has implicitly given her consent”. The judge's conclusion that the Crown had notmet the burden of proving that the complainant was not consenting was tainted by her reliance on the myth that silence is consent. [20] The trial judge relied upon another impermissible myth in her assessment of the complainant’s credibility.

The judge did notbelieve the complainant’s testimony that C.L. asked her to search for a condom in her brother’s bedroom. Among the reasons providedfor disbelieving the complainant on this point was that, if it were true, then the complainant could have left the house and prevented thealleged rape, “[The complainant] did not take the opportunity to leave the situation when she says it was offered to her … there is noplausible explanation as to why she just did not leave the house and seek help” (Transcript, May 31, 2021, at 214).

One plausibleexplanation is that the complainant, who considered C.L. to be her friend at the time, did not expect him to force sex upon her followingher refusal to fetch a condom. The impermissible myth – a woman can prevent a rape if she really wants to – was part of the judge’sfoundation in rejecting this testimony from the complainant. [21] Yet another impermissible myth – a woman may seek revenge on past lovers – was relied upon when the trial judge dismissed

the relevance of testimony that the complainant was emotionally upset after C.L. had left. Two witnesses had testified that thecomplainant was crying uncontrollably on the telephone when she called for assistance moments after the alleged assault. One of thosewitnesses, a friend, immediately drove to the complainant’s home with his stepfather.

That friend testified that when they arrived thecomplainant “was terrified … shaky and not very responsive, and was zoning in and out” (Transcript, March 31, 2021, at 65), and thatduring the days that followed the complainant remained “[r]eally shaken up, really afraid … [and] would burst out in tears” (Transcript,March 31, 2021, at 65-66).

The judge, without any evidentiary foundation, speculated that the complainant’s post-event emotions couldbe explained on the basis that she had been rudely and abruptly rejected by C.L. after the sexual intercourse, “It is not beyond the palethat the thoughtless and callous manner in which [C.L.] left after he ejaculated resulted in [the complainant’s] realization that she hadbeen used by someone she knew and trusted. A betrayal of this magnitude could result in extreme upset.” (Transcript, May 31, 2021, at210-211).

There was no evidence that could serve to support the notion that the complainant felt rejected by C.L. This notion was of thejudge’s conjecture, and was part of her consideration in the credibility assessment. Although a complainant's post-event emotionalcondition, on its own, is not a safe basis on which to resolve the credibility issue, it was an error for the judge to speculate here that thisemotional state was the product of rejection by a lover. [22] The trial judge’s reliance on these three impermissible myths was an error of law that affected the credibility assessment.

Considering C.L.’s perception of the complainant’s state of mind [23] In a sexual assault trial, to establish the actus reus, the Crown has the burden to prove physical contact of an objectively sexualnature and that the complainant did not consent to that contact, R. v. G.F., 2021 SCC 20, at para. 25.

The first component of the actusreus, the physical contact (sexual intercourse), was admitted, and the judge had to address the second component, that the complainantdid not consent. [24] In Barton, at para. 89, Moldaver J. explained that when proving that the complainant did not consent, “the focus is placedsquarely on the complainant's state of mind, and the accused's perception of that state of mind is irrelevant.” [25] In this case, the trial judge considered C.L.’s perception of the complainant’s state of mind, when addressing the secondcomponent of the actus reus.

The complainant had been asked whether C.L. would have known that she was upset when he left thehouse after the alleged assault. The judge reasoned that the response – “If he knew what he did, I’m sure he would, yes” – did notreconcile with her testimony of active resistance. In her reasons, at 216-217 of the Transcript, the judge found, “This response iscompletely at odds with her testimony that she repeatedly and persistently stated that she did not want to have sex with [C.L.], that sexwith him was not going to happen, that she resisted and tried to push him away”.

The qualified answer from the complainant about howC.L. may have perceived matters when he left the house should not have factored into the trial judge’s reasoning when she wasaddressing the issue of consent at the actus reus step of the analysis. The judge erred in relying on that answer in concluding, “I am notsatisfied that the Crown has met its burden to prove [the complainant’s] subjective state of mind that she was not consenting” (Transcript,May 31, 2021, at 220). [26] In relying on C.L.’s perception of the complainant’s state of mind when addressing the second component of the actus reus, thejudge erred.

Analysis of the mens rea for sexual assault when addressing the defence of honest but mistaken belief in communicated consent [27] C.L. argued that he honestly believed that the complainant had communicated consent to sex by her conduct, specifically, byparticipating in intimate foreplay without objection, and lifting her hips as he removed her shorts. [28] Honest but mistaken belief in communicated consent can be a valid defence, but it is not a defence where “the accused did nottake reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting”(Criminal Code, at s. 273.2(b)). [29] The complainant’s testimony was that she actively resisted and told C.L. to stop.

C.L.’s testimony was that there was nodiscussion on consent and that the complainant said nothing prior to intercourse but “[s]he just kind of laid there, and we continued tomake out” (Transcript, April 1, 2021, at 90). The trial judge in her recitation of C.L.’s testimony noted, “there wasn’t really muchcommunication, if any, during the whole sex part of it … he didn’t ask if he could take her clothes off, but said that when he started tounbutton her pants, she lifted her waist up” (Transcript, May 31, 2021, at 178).

Accordingly, there was no testimony from either C.L. orthe complainant to support affirmative verbal communication of consent. [30] At trial, the Crown argued that the mens rea could be established by either the complainant’s version of events, or C.L.’sversion of events. In other words, if the court did not accept the complainant’s testimony of active resistance then mens rea could still beproven through C.L.’s testimony about the complainant’s lack of communication. [31] The trial judge rejected this argument from the Crown because, in her view, it would shift the burden of proof to C.L.

In herreasons the judge stated: … the Crown submits that if I do not accept [the evidence of the complainant] that [she] was resistant, then the evidence [of C.L.] thatshe was passive will get to the same result. She does not say … how this reconciles with the burden of proof and the fact that I would becommitting an impermissible burden shift. I simply cannot accept both accounts as having occurred. (Transcript, May 31, 2021, at 215) [32] The Crown was not asking the judge to accept both accounts.

On the contrary, the Crown was arguing that mens rea could beproven by C.L.’s testimony, even if the judge rejected the complainant’s testimony. [33] It is not contentious that the burden is on the Crown to disprove the defence of honest but mistaken belief in communicatedconsent, when there is sufficient evidence to support the defence. This point was made by Wilson J. in R. v. Robertson,

(SCC), [1987] 1 SCR 918, at 936, and repeated by Cory J. in R. v. Osolin, (SCC), [1993] 4 SCR 595, at 690: … if there is sufficient evidence to put the issue before the jury, then the Crown has the burden of proving beyond a reasonable doubtthat the accused did not have an honest belief as to consent.

The defence of mistake, as Dickson J. pointed out in Pappajohn, is simply adenial of mens rea which does not involve the accused in a burden of proof. (Emphasis in original.) [34] There is no shifting of that burden to the accused when a judge relies on an accused’s testimony in concluding that the defenceof honest but mistaken belief in communicated consent is not established. A judge may accept all or part or none of the testimony of anywitness.

Rejection of the complainant’s testimony of active resistance and acceptance of C.L.’s testimony that the complainant waspassive does not give rise to a shift in the burden of proof. This was an important point considering C.L.’s testimony that the complainantwas silent (no verbal communication) and passive. An accused’s belief that silence, passivity or ambiguous conduct constitutes consentis a mistake of law, and cannot support the defence of honest but mistaken belief in communicated consent, R. v.

Ewanchuk, (SCC), [1999] 1 S.C.R. 330, at para. 51, and Barton, at paras. 98, 107. [35] The reasonable step that C.L. claims he took during the intercourse (i.e. his testimony was that after penetration he soughtconsent to continue) is not relevant.

The reasonable steps must be taken prior to the sexual activity if an accused is defending on the basisthat there was an honest but mistaken belief in communicated consent for the sexual activity. [36] The judge’s suggestion that acceptance of the Crown’s submission (that mens rea could be established by C.L.’s version ofevents) would amount to a shifting of the burden of proof was an error of law that affected her assessment of whether mens rea wasestablished.

Reliance on a non-verbal gesture of the complainant [37] The trial judge interpreted a non-verbal gesture of the complainant, made in response to a question posed to her by defencecounsel at trial, to support the judge’s conclusion that the complainant had an ability to communicate consent to sexual intercourse in anon-verbal manner, and therefore could have communicated her consent to sexual intercourse in a non-verbal manner. In her reasons, thejudge stated: … when asked if she just kept quiet, she shrugged and gave no audible response to the question.

Rather, she shrugged, tilted her head,and made a facial expression that clearly signified, “possibly”, “maybe”, or “could be”. Her ability to communicate in a nonverbalmanner crystallized in that moment. … … … [C.L.’s] evidence that [the complainant] was quiet and communicating nonverbally is not inconsistent with how she described herusual demeanor and the manner in which it appears [C.L.] was accustomed to interacting with her.

Also there was [the complainant’s]nonverbal response in the courtroom to the question of whether she was quiet during the sex, which clearly conveyed the answer of“maybe”, “possibly”, or “could be”. … (Transcript, May 31, 2021, at 200-201, 218-219) [38] The judge erred by relying on her observation of the complainant’s non-verbal gesture when addressing C.L.’s defence ofhonest but mistaken belief in communicated consent, without seeking submissions from counsel regarding her observation. [39] There was no attempt to clarify what the complainant meant by the non-verbal gesture; it was not mentioned by the judge orcounsel during trial or closing submissions.

There is nothing in the trial record to allow this Court to review the conclusion reached bythe trial judge in her

interpretation of this gesture, or the reasonableness of her inference that the complainant was able to communicatenon-verbally in the context of consent to sexual intercourse. [40] A trial judge, when interpreting a gesture made by a witness in response to a question and then relying on that gesture toaddress a key issue at trial, is obliged to disclose her observations to counsel and ask for submissions on what was observed.

The absenceof any record, beyond the judge’s conclusory statements in her decision, undermines this Court’s ability to engage in meaningfulappellate review of the conclusion reached. [41] In R. v. Salai, 2007 ABCA 30, a similar issue arose when a trial judge relied on silent gestures – described by the judge assignaling – exchanged between an accused and a witness on the stand.

I agree with the comments of Berger J.A. (below) when he saidthat a trial judge’s failure to afford counsel the opportunity to address the non-verbal gestures before adjudicating on their significanceconstitutes an error of law: [13] The absence of recited factual underpinnings for the judge's conclusory statement regarding "signaling", in my view, undermines theability of this Court to engage in meaningful appellate review of the conclusion reached … Also, the failure to afford to counsel anyopportunity to address the matter before adjudicating on its significance constitutes an error of law in these circumstances.

The trialjudge first mentioned the alleged misconduct [the non-verbal gestures] involving the witness and the Appellant when she gave herreasons for finding the Appellant guilty. … [15] … Absent timely disclosure of her observations, there was no opportunity for counsel to make diligent inquiry to ascertain whetherthe trial judge's observations and conclusions were accurate, or whether she misinterpreted something entirely innocuous.

On this record,there is no way of knowing what the trial judge had in mind when she perceived "signaling" between [the witness] and the Appellant.Counsel were, accordingly, precluded from addressing the trial judge's concerns. Meaningful appellate review, in the result, is also

thwarted. (Citations omitted.) [ 42 ] The same error occurred here when the judge failed to disclose her observations to counsel, failed to afford counsel any opportunity to address the matter, but relied on the observation as part of her consideration of C.L.’s defence of honest but mistaken belief in communicated consent. [ 43 ] I add that most people have the ability to communicate non-verbally, and even if the complainant had used a non-verbal gesture to respond to a question at trial, that does not support a conclusion, under any chain of reasoning, that she non-verbally consented to sexual intercourse with C.L.

A dmission of evidence of prior communications made for a sexual purpose [ 44 ] During cross-examination, the complainant was questioned about Snapchat communication she had with C.L. some months prior to the alleged assault. C.L. had suggested that the two get together for sexual activity. The relevant exchange at trial regarding this Snapchat communication is as follows: Q. … his attempt to get you to have sex, was that just out of the blue for a friend? A. He’s asked me before, and we joked around about it before. But when he asked me that night, I said no. Q. Okay.

And I don’t know if this crosses the line, my friend will jump up if it does, because I am not asking her about activity, but what do you mean you joked around about it? A. Over Snapchat, maybe, months ago, before – or no, sorry, after him and my friend broke up, we – he would joke about saying, “Hey, we should meet up, come over, we should hang out alone at, like, one of our places one time,” and I joked around, I’m like, “Yeah, that might sound fun.” But when he got to the house, I told him to stop, and I said no. Q. Okay.

But you understood from previous conversations that that was just – that wasn’t, like, for playing cards; that was for sexual activity? A. It was -- I was expecting, like, joking around, like. Q. Okay, agreed, but joking around about sexual activity? A. Yes. (Transcript, March 31, 2021, at 46-47) [ 45 ] Pursuant to

section 276 of the Criminal Code this type of evidence is not admissible where its purpose is to support an inference, by virtue of the sexual purpose or content of the communication, that the complainant is more likely to have consented, or is less worthy of belief: 276

(1) In proceedings in respect of an offence under

section … 271 [sexual assault], … evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible 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. …

(4) For the purpose of this section, sexual activity includes any communication made for a sexual purpose or whose content is of a sexual nature. (Emphasis in original.) [ 46 ] The Crown says that the trial judge erred by admitting this evidence without conducting a hearing under the procedure set out in sections 278.93 and 278.94 of the Criminal Code . [ 47 ] I agree that the trial judge made an error of law by admitting this evidence without conducting a hearing. The content of this communication meets the definition of “sexual activity” – in this case proposing a meeting for a sexual purpose. The hearing procedure to determine the admissibility of this type evidence, under the

section 276 regime, is mandatory. As noted by Moldaver J. at paragraph 68 of Barton , “The ultimate responsibility for enforcing compliance with the mandatory s. 276 regime lies squarely with the trial judge, not with the Crown”. It was up to the trial judge to intervene and proceed with the appropriate hearing. This was an issue in Barton and was the central error relied upon by Moldaver J., in ordering a new trial: [9] For reasons that follow, I am of the view that a new trial is warranted. The central error committed by the trial judge was his failure to comply with the mandatory requirements set out under the s. 276 regime. …

Did the errors affect the result? [48] Having found that the trial judge committed errors of law, the question remains whether the Crown has established that theerrors affected the result. In other words, has the Crown established a nexus between the errors of law and the resulting acquittal; that is,did the identified errors have a material bearing on the acquittal. As stated by Fish J., writing for the majority in R. v.

Graveline, 2006SCC 16, [2006] 1 SCR 609: [14] … It is the duty of the Crown in order to obtain a new trial to satisfy the appellate court that the error (or errors) of the trial judgemight reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal. The AttorneyGeneral is not required, however, to persuade us that the verdict would necessarily have been different. [49] C.L.’s counsel says that the errors raised by the Crown would not have affected the result because the judge believed theevidence of C.L. Under the first stage of the R. v.

W.(D.), (SCC), [1991] 1 SCR 742 analysis (applicable whenever anaccused testifies) the judge is obliged to acquit if he or she believes the evidence of the accused. Accordingly, defence counsel maintainsthat the nexus between the errors of law and the resulting acquittal is not established. I do not accept that reasoning. [50] Acceptance of C.L.’s evidence was part of a dynamic in which the trial judge considered and rejected the complainant’sevidence. In assessing credibility, a judge conducts an examination of the evidence as a whole and considers any inconsistencies in thewitnesses’ version of events.

Errors that occurred in assessment of the complainant’s evidence affect the assessment of C.L.’s evidence.For example, the error of law relying on discredited myths, and the error of law accepting inadmissible evidence (prior sexualcommunication) negatively affected the judge’s view of the complainant’s evidence and, in consequence, positively affected C.L.’sevidence. [51] In the context of this matter, with credibility a major issue, these two errors of law (reliance on discredited myths andacceptance of inadmissible evidence) might reasonably be thought to have had a material bearing on the acquittal. [52] To similar effect, the judge’s consideration of C.L.’s perception of the complainant’s state of mind when addressing the actusreus, the judge’s suggestion that considering C.L.’s version of events would amount to a shifting of the burden of proof, and the judge’sreliance on the complainant’s non-verbal gesture when answering a question in court, were also errors of law that individually andcollectively “might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal”(Graveline, at para. 14). [53] The verdict would not necessarily have been the same in the absence of the trial judge's errors of law.

These errors meet the testin Graveline, and necessitate a new trial. DISPOSITION [54] I would allow the appeal, set aside the acquittal and order a new trial. _____________________________ W.H. Goodridge J.A. I concur: _____________________________ L.R. Hoegg J.A. I concur: _____________________________ G.D. Butler J.A.