R v Derksen, 2023 MBCA 85

Citation: R v Derksen , 2023 MBCA 85 Date: 20231005 Docket: AR22-30-09794 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Christopher J. Mainella Madam Justice Jennifer A. Pfuetzner Madam Justice Janice L. leMaistre BETWEEN : ) K. L. Bueti and HIS MAJESTY THE KING ) J. S. Brar ) for the Appellant Respondent ) ) R. N. Malaviya - and - ) for the Respondent ) ) Appeal heard: CONNER JAYCE DERKSEN ) May 5, 2023 ) ( Accused ) Appellant ) Judgment delivered: ) October 5, 2023 NOTICE OF RESTRICTION ON PUBLICATION : No one may publish, broadcast or transmit any information that could disclose the identity of the victim(

s) or witness(es) (see

section 486.4 of the Criminal Code ) . LEMAISTRE JA Introduction [ 1 ] After a trial by a judge sitting with a jury, the accused was convicted of sexual assault. The offence involved repeated acts of non-consensual sexual activity, including fellatio, vaginal intercourse, digital vaginal penetration and attempted anal intercourse. [ 2 ] The accused appeals his conviction.

He argues that the trial judge erred by dismissing his application to adduce evidence of the victim’s prior sexual history with him (the prior sexual history evidence) and that comments made by the Crown during its closing submission to the jury caused him prejudice, resulting in a miscarriage of justice. [ 3 ] For the reasons that follow, I would dismiss the appeal. Background The Facts [ 4 ] The victim testified at trial and described the following events. On the night of the offence, she had agreed to be the designated driver for the accused, his girlfriend (the girlfriend) and his friends.

When asked, she picked them up at a social (an event to raise funds where guests pay to attend and purchase their own alcohol). The accused was intoxicated and injured, having been involved in an altercation. [ 5 ] After she dropped everyone else off at the girlfriend’s residence, the victim was asked to take the accused somewhere else because his friends were upset with him and did not want him there. When the accused was in the victim’s vehicle, he refused to give her directions to his residence and told her to drop him off in a ditch. Concerned for his well-being, she instead drove him to her

house. There she tended to his injured hand and helped him take his shirt off. He got into her bed under the blanket and she got on thebed beside him over the blanket, intending to watch television with him. [6] The accused began touching and snuggling the victim. She pushed his hand away and told him to stop. He persistedand became more forceful. He kissed her and touched her vagina. She again told him to stop and pulled his hand away.

The accusedsaid, “Well, if I’m going to get charged with sexual assault, it might as well be from you.” [7] While the victim was “[t]errified” and crying, the accused had vaginal intercourse with her. Recognizing that herefforts to fight him off had been unsuccessful, the victim became resigned, hoping that the assault would “be over faster” if she “wentalong with it”. Over the course of approximately an hour to an hour and a half, the accused penetrated the victim’s vagina with hisfingers, had repeated vaginal intercourse with her, put his penis in her mouth and attempted anal intercourse.

Eventually, he fell asleepand, when he awoke, she drove him to his car, which was parked at the girlfriend’s residence. [8] As a result of the attack, the victim suffered bruising to her wrists, as well as between her legs near her vagina. [9] A few days later, the victim texted the accused to confront him about the sexual assault. He responded, claiming thathe did not remember what had happened. [10] The victim struggled with deciding whether to contact the police. She felt guilt that she “gave in”, rather than takingfurther steps to try to stop the attack.

She also found it “hard to press charges against someone [she] considered a really close friend.” Eventually, she decided that contacting the police was “the right thing to do” and she provided a statement about the sexual assault. The Trial [11] As part of its disclosure obligation, the Crown provided to the accused evidence of text messages exchanged by thevictim and a friend on the night of the offence (the text messages). The accused brought a pre-trial application under

section 278.93 ofthe Criminal Code [the Code] for an order that he be permitted to adduce the text messages at trial pursuant to

section 276. He alsobrought an application under

section 278.93 to admit the prior sexual history evidence, also pursuant to

section 276. [12] The prior sexual history evidence the accused wished to adduce at trial was that he had engaged in a “romantic”relationship with the victim for approximately a year and a half prior to the offence.

This relationship involved “kissing, touching, andintercourse” at times when the victim was providing him with psychological comfort and ended when the accused began a relationshipwith the girlfriend. [13] On the applications, the accused argued that the text messages and the prior sexual history evidence were relevant to theissues of consent and whether the accused had an honest but mistaken belief in communicated consent. [14] The trial judge concluded that the accused could “not bring forward evidence or cross-exam [the victim] in respect ofthe prior sexual activity” (2021 MBQB 204 at para 17) because he had not established its relevance to either issue.

However, the trialjudge did permit the accused to question the victim about a discussion she said they had on the night of the offence during which heasked her if she enjoyed the last time they had sex (the discussion). The trial judge also permitted the accused to question the victimabout the text messages provided he refrain from “rais[ing] the spectre of the twin myths” (at para 24) prohibited by law.

In his view, atthat point in the proceedings, the discussion and the text messages appeared to be relevant to the issues of consent and honest butmistaken belief in communicated consent. [15] During cross-examination at trial, the victim admitted that she felt used by the accused, but denied that this was becauseshe found out that the accused intended to continue his relationship with the girlfriend. She also denied that she complained about beingsexually assaulted because the accused was not ending that relationship. [16] The accused testified in his own defence.

He denied that he was intoxicated on the night of the offence. Although hehad told the police that he did not remember what happened when he was with the victim, he testified that the victim initiated the sexualcontact and denied that she had said no or had done anything to communicate a lack of consent. He explained that he was trying not totalk too much about “the situation” when he spoke with the police in order to avoid a “panic attack”.

Despite testifying that, to avoidstress, anxiety or confrontation, he will “[i]mply lost recollection” by saying “I don’t know or I don’t remember”, on cross-examination,the accused refused to admit that this was lying; he described it as a “reflex” and “coping mechanism”. [17] Prior to closing submissions to the jury, the trial judge held a conference to discuss the final instructions he intended togive to the jury (the pre-charge conference).

At the pre-charge conference, the defence position was that there was evidence whichprovided an air of reality to the defence of honest but mistaken belief in communicated consent and that the jury should be instructed onthat defence. The defence argued that the victim admitted to “going along” with the accused’s sexual advances at a certain point and,therefore, the jury was required to consider whether he was entitled to believe that she was consenting to the sexual contact at that point. [18] The Crown disagreed.

Referring to the Supreme Court of Canada decision in R v Park, (SCC), [1995]2 SCR 836, it argued that the issue was not the parties’

interpretation of what happened but, rather, credibility as to consent. It alsoargued that the accused could not rely on the defence of honest but mistaken belief in communicated consent because the evidenceestablished that he had taken no reasonable steps to ascertain consent (see R v Barton, 2019 SCC 33 at para 121).

Finally, the Crownargued that any acquiescence by the victim could not reasonably be considered consent in light of the accused’s prior application offorce. [19] The trial judge expressed concern that, by relying on things the victim did and asserting that her behaviour, such astaking off her pants and changing into pajama bottoms, may have led the accused to believe she was consenting, the defence was reallyarguing implied consent as opposed to honest but mistaken belief in communicated consent.

He also expressed concern about thedefence argument that there could be consent to sexual activity after non-consensual contact. The trial judge noted that, in order to relyon the defence of honest but mistaken belief in communicated consent, the accused had to “take steps to ascertain what’s . . . going on.”

[20] Relying on Park, the trial judge determined that there was no air of reality to the defence of honest but mistaken beliefin communicated consent and that it should not be left with the jury. He concluded that “[this] case involves exactly the type of casewhere the courts have generally refused to put the defence of honest but mistaken belief in communicated consent to the jury.” [21] After the trial judge provided his final instructions to the jury, the defence raised an objection regarding what theyasserted were inflammatory comments in the Crown’s closing submission.

Without hearing from the Crown, the trial judge determinedthat he would not recall the jury to address the objection and “bring it to their attention again.” Issues on Appeal [22] The accused raises two issues on the appeal: (1) whether the trial judge erred in refusing to admit the prior sexualhistory evidence pursuant to

section 276 of the Code, and (2) whether the Crown made improper and inflammatory comments during itsclosing submission that were not appropriately addressed by the trial judge and that prejudiced the accused’s right to a fair trial, resultingin a miscarriage of justice.

Admissibility of the Prior Sexual History Evidence The Relevant Legal Principles [23] A brief review of the relevant law regarding the offence of sexual assault will provide context for the discussionregarding the admissibility of the prior sexual history evidence. [24] To begin, the actus reus of sexual assault involves non-consensual touching of a sexual nature (see R v Ewanchuk, (SCC), [1999] 1 SCR 330 at para 25). [25] The Code defines consent as “the voluntary agreement of the complainant to engage in the sexual activity in question”(at

section 273.1(1)). In Ewanchuk, Major J stated consent means “that the complainant had affirmatively communicated by words orconduct her agreement to engage in [the] sexual activity with the accused” (at para 49). [26] The absence of consent is determined by the victim’s subjective state of mind; whether the victim wanted the sexualtouching to take place. As explained in Ewanchuk, “The accused’s perception of the complainant’s state of mind is not relevant.

Thatperception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry” (at para30). [27] Implied consent, broad advance consent and propensity to consent do not exist in Canadian sexual assault law (seeBarton at para 97). In Barton, Moldaver J stated (at para 118): . . . As a matter of law, consent must be specifically renewed — and communicated — for each sexual act. Moreover, a belief that thecomplainant could give broad advance consent to whatever the accused wanted to do to her is a mistake of law.

Finally, the inferencethat the complainant’s past sexual activities, by reason of their sexual nature, may make it more likely that she consented to the sexualactivity in question — the first of the “twin myths” — is also a mistake of law. [28] Pursuant to section 265(3), consent is vitiated “where the complainant submits or does not resist” due to the applicationof force, threats or fear of the application of force, fraud or the exercise of authority. [29] The mens rea of sexual assault involves an “intention to touch and knowing of, or being reckless of or wilfully blind to,a lack of consent on the part of the person touched” (Ewanchuk at para 42). [30] While consent is determined based on the state of mind of the victim, “belief in consent is, subject to s. 273.2 of theCode, a matter of the state of mind of the accused and may raise the defence of honest but mistaken belief in [communicated] consent”(ibid at para 33).

As Moldaver J explained in Barton (at para 90): For purposes of the mens rea, and specifically for purposes of the defence of honest but mistaken belief in communicated consent,“consent” means “that the complainant had affirmatively communicated by words or conduct her agreement to engage in (the) sexualactivity with the accused” (Ewanchuk, at para. 49).

Hence, the focus at this stage shifts to the mental state of the accused, and thequestion becomes whether the accused honestly believed “the complainant effectively said ‘yes’ through her words and/or actions”(ibid., at para. 47). [31] In order to rely on the defence of honest but mistaken belief in communicated consent, an accused must establish thatthere exists an air of reality to the defence.

The trial judge must “consider whether there is any evidence upon which a reasonable trier offact acting judicially could find (1) that the accused took reasonable steps to ascertain consent and (2) that the accused honestly believedthe complainant communicated consent” (Barton at para 121). [32] Where the testimony of the victim and the accused is “diametrically opposed” (R v Davis, (SCC),[1999] 3 SCR 759 at para 85), honest but mistaken belief in communicated consent will not arise; the issue at trial is one of the victim’scredibility as to the lack of consent.

For the defence to apply, there must be “evidence of a situation of ambiguity” that is “capable ofexplaining how the accused could honestly have mistaken the complainant’s lack of consent as consent”, such that what is at issue is not

what happened but the parties’

interpretation of what happened (R v Esau, (SCC), [1997] 2 SCR 777 at para 63; seealso Davis at para 86; and Park at paras 25-26). [33] Section 276(1) precludes the use of evidence of a complainant’s prior sexual history to support twin myth reasoning. Itstates: Evidence of complainant’s sexual activity 276(1) In proceedings in respect of an offence under

section 151, 152, 153, 153.1 or 155, subsection 160(2) or (3) or

section 170, 171,172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any otherperson, 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. [34] The accused who wishes to rely on prior sexual history evidence in support of a defence of honest but mistaken belief incommunicated consent “must be able to explain how and why that evidence informed his honest but mistaken belief that shecommunicated consent to the sexual activity in question at the time it occurred” (Barton at para 93) (emphasis in original). In Barton,Moldaver J explained this requirement in the following way (ibid): . . .

For example, in some cases, prior sexual activities may establish legitimate expectations about how consent is communicatedbetween the parties, thereby shaping the accused’s perception of communicated consent to the sexual activity in question at the time itoccurred. American scholar Michelle Anderson puts it this way: “… prior negotiations between the complainant and the defendantregarding the specific acts at issue or customs and practices about those acts should be admissible. These negotiations, customs, andpractices between the parties reveal their legitimate expectations on the incident in question” (M. J.

Anderson, “Time to Reform RapeShield Laws: Kobe Bryant Case Highlights Holes in the Armour” (2004), 19 Crim. Just. 14, at p. 19, cited in Hill, Tanovich and Strezos[S Casey Hill, David M Tanovich & Louis P Strezos, McWilliams’ Canadian Criminal Evidence, 5th ed (Toronto: Thomson Reuters,2013) (loose-leaf updated 2023, release 3), pt III, ch 16 at

section 16:15 (online: WL Can (date accessed 7 September 2023))], at§ 16:20.50.30). These “negotiations” would not, however, include an agreement involving broad advance consent to any and all mannerof sexual activity. As I will explain, a belief that the complainant gave broad advance consent to sexual activity of an undefined scopewill afford the accused no defence, as that belief is premised on a mistake of law, not fact.

Discussion [35] The accused argues that the trial judge erred by finding that the prior sexual history evidence was not relevant becauseit provided important context regarding his state of mind on the night of the offence and whether he had an honest but mistaken belief incommunicated consent.

He contends that, because he was not permitted to question the victim about their prior sexual history, he wascurtailed in his ability to raise the defence of honest but mistaken belief in communicated consent. [36] The trial judge’s decision regarding the admissibility of the prior sexual history evidence raises a question of law,reviewable for correctness (see the Code at

section 278.97; and R v S (D), 2022 MBCA 94 at para 38). [37] In support of his application, the accused relied on his own affidavit. In it, he stated that his relationship with the victiminitially began as a friendship, but evolved into a sexual relationship. He explained that it was their “co-dependent relationship” whichled to their sexual relationship. He said that he and the victim often had “late night sex” which provided him with psychological andsexual comfort.

He disputed the victim’s assertion in her statement to the police that their prior sexual relationship consisted of a“drunken mistake once” and, without providing any details, he asserted that, on numerous occasions, the victim took him to her homeand “nurture[ed] [his] emotional ‘lows’ with sexual activity.” [38] Before the trial judge, the accused argued that the prior sexual history evidence was relevant to contradict the victim’sstatement to the police that they had only had sex on one prior occasion, to provide a full narrative and to establish the defence of honestbut mistaken belief in communicated consent.

He asserted that his position that the sexual activity on the night of the offence wasconsensual could not be “reconciled” without the prior sexual history evidence because it provided evidence of his state of mind at thetime of the offence. [39] The accused relies on the decisions of R v Temertzoglou, (ONSC); and R v Quesnelle, 2010 ONSC2698 to support his argument that the prior sexual history evidence was relevant.

In my view, these cases do not advance the accused’sargument. [40] In Quesnelle, the victims were expected to testify that they did not know the accused whereas he claimed that he hadhired them for sex in the past. Therefore, the evidence of the victims’ prior sexual contact with the accused was relevant to their

credibility. [ 41 ] In Temertzoglou , the accused, who was in his 40’s, had been charged with sexually assaulting a teenaged girl. He was tried by a judge alone. Fuerst J concluded that evidence of the parties’ prior sexual activity was relevant for a number of reasons. She explained that (at para 29): . . .

Specifically, the evidence of other sexual activity has relevance in that it shows the development of a relationship between the parties which is more than platonic, notwithstanding an age difference that might otherwise engender a presumption against the defence; it provides necessary context to the motel visit on November 24, without which aspects of [the accused’s] account such as the obtaining of lambskin condoms would be untenable; it is necessary in order to make sense of prior inconsistent statements that will be put to Ms.

M.-E.C., which can impact on her credibility; and it demonstrates the complainant’s involvement in planning the evening of November 24, which tends to support the defence position. [ 42 ] In the present case, the accused failed to establish a proper foundation to permit him to challenge the victim’s credibility on the basis of the prior sexual history evidence.

Although the evidence might have been relevant to the issue of the victim’s credibility because the accused disputed her statement to the police that they had only had sex on one prior occasion, it did not establish the relevance of the sexual nature of the relationship to an issue at trial with the required precision in order to be admissible and it had little probative value (see S (

D) at paras 68-69, 73-74 ; and R v Goldfinch , 2019 SCC 38 at para 57 ). Moreover, implied consent cannot ground a mistaken belief in communicated consent defence (see Barton at para 96 ). [ 43 ] The victim did not give the misleading perception that her relationship with the accused was platonic. The accused did not allege that he misread the situation because of their prior sexual relationship. There was no evidence from him regarding any expectations about how the victim communicated her consent in the past which shaped his perception at the time of the offence (see Barton at para 93 ). Nor was there any evidence of an ambiguity regarding the parties’

interpretation of what happened (see Park at paras 25-26 ). As the Court stated in Goldfinch (at para 47 ): . . . [T]he obvious implication of the evidence of an ongoing sexual relationship was that because the complainant had consented to sex with [the accused] in the past, in similar circumstances, it was more likely she had consented on the night in question. . . .

Such an approach misapprehends the nature of consent and is barred by s. 276(1). [ 44 ] There was nothing regarding the accused’s evidence that needed explaining, that was untenable or that could not be reconciled without the prior sexual history evidence.

Nor was there anything about the facts in this case that made the accused’s testimony that the sexual contact was consensual improbable (see Quesnelle at para 44 ; and Temertzoglou at para 29 ). [ 45 ] Even if the victim had agreed at trial that she had previously lied about her prior sexual activity with the accused, this “would simply have affected her credibility on a collateral issue” of intense privacy ( S (

D) at para 83 ). [ 46 ] The main difficulty with the accused’s argument is that his defence was that the victim had actually consented. The use of the prior sexual history evidence in respect of that defence engaged reasoning prohibited by

section 276: that the victim was more likely to have consented to the sexual contact, that she gave advance consent, that her consent could be implied or that she was not credible because of her prior sexual relationship with the accused. The accused did not, and indeed could not in the circumstances of this case, raise the defence of honest but mistaken belief in communicated consent as it had no air of reality.

Ultimately, there was no basis to admit the prior sexual history evidence. [ 47 ] Moreover, the accused did not renew the application at any point based on the evidence as it unfolded at the trial. [ 48 ] I have not been persuaded that the trial judge made any reviewable error in refusing to admit the prior sexual history evidence on the basis that it was not relevant to an issue at trial. I would dismiss this ground of appeal.

The Crown’s Closing Submission [ 49 ] The accused argues that comments made by the Crown during its closing submission to the jury resulted in significant prejudice by suggesting that he is not honest, by misstating the defence position and by denigrating defence counsel. [ 50 ] The accused summarizes the comments made by the Crown in its closing submission that he asserts were inflammatory in the following way:

(1) The term honesty does not mean anything to the [accused], and it doesn’t mean he is telling the truth;

(2) There is no rule about how a victim of sexual assault will behave. Defence counsel was well aware of that and the law surrounding that area, but he chose to argue otherwise;

(3) Defence counsel incorrectly outlined the evidence in his summation to the jury. Crown stated that they would not list all of themischaracterizations put forth, but if there were any difficulties, the jury should listen to the evidence again and should not take defencecounsel’s word for it;

(4) Defence Counsel suggested the complainant must have wanted it;

(5) The [accused] and Defence Counsel are attempting to portray an elaborate tale;

(6) The jury cannot believe a word the [accused] is saying. Lying is just a reflex for the [accused]. [footnotes omitted] The Relevant Legal Principles [51] Crown counsel fulfill a quasi-judicial function in the criminal justice system in Canada (see Boucher v The Queen, (SCC), [1955] SCR 16). The Crown’s duty in a criminal prosecution was described in Boucher in the following way (at pp 23-24): . . .

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what theCrown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legalproof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role ofprosecutor excludes any notion of winning or losing; [its] function is a matter of public duty than which in civil life there can be nonecharged with greater personal responsibility.

It is to be efficiently performed with an ingrained sense of the dignity, the seriousness andthe justness of judicial proceedings. . . . [52] While the Crown cannot adopt a “purely adversarial role towards the defence . . . it is well recognized that theadversarial process is an important part of our judicial system and an accepted tool in our search for the truth” (R v Cook, (SCC), [1997] 1 SCR 1113 at para 21) (emphasis in original).

Within the adversarial process, it is appropriate for the Crown to actas a strong advocate and “it is both permissible and desirable that it vigorously pursue a legitimate result to the best of its ability” (ibid). [53] When making submissions to a jury, the Crown’s responsibility includes the duty to “promote the cause of justice” bymaking “a reasoned argument” on the evidence (R v Proctor (1992), (MB CA), 69 CCC (3d) 436 at 449 (MBCA)). [54] In R v Mallory, 2007 ONCA 46, the Court explained the latitude to be given to the Crown when making its closingaddress (at paras 339-40): . . .

While Crown counsel must at all times conduct themselves with dignity and fairness, they are entitled to advance their positionforcefully when making closing submissions. In R. v. Daly (1992), 57 O.A.C. 70 at 76 (C.A.), this court observed: A closing address is an exercise in advocacy. It is the culmination of a hard fought adversarial proceeding. Crown counsel, like anyother advocate, is entitled to advance his or her position forcefully and effectively. Juries expect that both counsel will present theirpositions in that manner and no doubt expect and accept a degree of rhetorical passion in that presentation.

The closing address is the proper forum for argument and the Crown is certainly entitled to argue its case forcefully. The Crown shouldnot, however, engage in inflammatory rhetoric, demeaning commentary or sarcasm, or legally impermissible submissions that effectivelyundermine a requisite degree of fairness [citations omitted]. [55] On appellate review, a trial judge’s failure to intervene when the Crown has made improper comments that aresufficiently prejudicial is an error in law (see R v EF, 2022 ABCA 366 at para 10; and R v Clyke, 2021 ONCA 810 at para 32).

A trialjudge’s response to prejudicial conduct is owed significant deference (see Clyke at para 38; and R v Kociuk (RJ), 2011 MBCA 85 para6).

[56] In Kociuk (RJ), Chartier JA (as he then was) explained a trial judge’s responsibility when counsel’s submissions includeimproper remarks (at para 64): The law is clear. When counsel make erroneous comments in their jury addresses, the trial judge must correct the misstatement (see R. v.Romeo, (SCC), [1991] 1 S.C.R. 86 at para. 95; and R. v. Rose, (SCC), [1998] 3 S.C.R. 262 atparas. 126 and 127).

A mid-trial instruction to disregard can effectively correct any concern that a jury might misuse the informationwhen rendering its verdict, if it is given promptly and is accompanied by an explanation of why that information should be completelydisregarded (see R. v.

Normand (D.G.), 2002 MBCA 95 at para. 20, 166 Man.R. (2d) 179). [57] Once it has been determined that the Crown’s conduct was improper, the question on appeal becomes “whether,considered in the context of the trial as a whole, including the evidence adduced and the positions advanced, the substance or manner ofthe Crown’s closing address has caused a substantial wrong or miscarriage of justice, including by prejudicing the accused’s right to afair trial” (R v McGregor, 2019 ONCA 307 at para 184; see also EF at para 10; and Clyke at para 33).

Discussion The Accused Could Not Be Believed (Points 1 and 6) [58] I am not persuaded that the Crown’s submission that the accused could not be believed was improper. Its commentswere made in the context of the evidence bearing on the accused’s credibility. The Crown did not argue that the presumption ofinnocence was displaced, such as by suggesting that the accused would lie in order to be acquitted (see R v Laboucan, 2010 SCC 12 atpara 12).

Nor did the Crown, by making these comments, put the accused’s character in issue when he had not (see R v Wilson, at paras 36-38 (MBCA)) or express its personal opinion on the accused’s veracity (see Clyke at para 34). [59] The accused’s credibility was a central issue in the case. Despite failing to correct the victim when she confronted himabout the non-consensual sexual contact and telling the police that he had no memory of the events at the victim’s residence, he provideddetailed testimony regarding their sexual activity at trial.

The accused also testified that he has a tendency to imply that he does notremember something or will refuse to admit “to everything that has happened” in order to avoid a confrontation and that this is a “reflex”for him. On the evidence, it was entirely proper for the Crown to comment in its closing submission on the veracity of the accused’stestimony and his credibility overall.

Misstating the Evidence (Point 3) [60] I am also not persuaded that the Crown acted improperly by commenting on defence counsel’s misstatements of theevidence: “The Crown is entitled to argue its case forcefully” and “is afforded considerable latitude” when doing so (R v John, 2016ONCA 615 at para 77). Moreover, as will be seen, the trial judge instructed the jury to make its own assessment of the evidence.

Suggesting the Victim “Wanted It” (Point 4) [61] The theory of the defence was that the victim initiated the sexual contact and wanted to pursue a relationship with theaccused; it was only after she found out that he had not ended his relationship with the girlfriend that she conceived the notion that thesexual contact was non-consensual. While, in my view, the expression used is somewhat controversial, it was not a misstatement of thedefence position for the Crown to suggest that their theory was that “she wanted it”.

Denigrating Defence Counsel (Points 2 and 5) [62] I do not accept the accused’s argument that all of the impugned comments were improper. However, as I will explain,in my view, the following two comments in the Crown’s closing address were problematic: . . . There is no rule about how a victim of sexual assault will behave. Defence counsel is well aware of that. He knows that that’s thelaw but he chose to argue otherwise this morning. . . .

There are three major issues with [the accused’s] version of events and the elaborate tale that counsel for the accused has attempted toportray this morning. . . . . . . [63] The accused argues that the Crown’s first impugned comment left the jury with the impression that, although defencecounsel was aware of the law regarding the use of impermissible myths and stereotypes, he “purposely” argued in a manner contrary tothe law.

The accused says that defence counsel “did no such thing”. [64] Respectfully, I disagree with the accused’s assertion that the defence did not rely on impermissible myths andstereotypes; they can be found throughout the closing address in which defence counsel repeatedly suggested that the victim’s behaviour

was not consistent with a person who had been sexually assaulted, despite her testimony about why she behaved in the manner that she did. I will provide three examples. [ 65 ] First, during her testimony, the victim said that after the accused sexually assaulted her he fell asleep. Although she “didn’t really sleep a whole lot that night”, she set her alarm for 9:00 a.m. because she thought that by that time the accused would be sober enough that she could take him to his car, which was parked at the girlfriend’s apartment. [ 66 ] On cross-examination, defence counsel challenged her about this contention.

He asked her, “[A]fter what you’ve said occurred . . . you’re just going to let this guy sit there and sleep”. Then, in his closing address to the jury, despite the victim’s explanation as to why she set her alarm and let the accused sleep, defence counsel made the following statements: . . . So she says sexual assault, oral sex forced. Vaginal sex forced. Anal sex forced. And after that enduring event, after she has been terrified she sets the alarm clock for 9:00. Does that make any sense to any of you?

Who is sexually assaulted and sets their alarm clock to let him sleep until you’re ready to take him where he wants to go. . . . [ 67 ] Next, on cross-examination, defence counsel questioned the victim about the text messages in which her friend offered to go to her residence when she told him what the accused had done. She said she told him not to come over because he had threatened to beat up the accused. In his closing argument, defence counsel asked the jury the following rhetorical questions: “A nd I ask you if you can get away, do you?

If someone offers to help you, do you take that assistance?” He followed these questions with the suggestion that, by not leaving or taking the assistance that was offered, the victim’s behaviour was unreasonable, despite her explanations for why she did not leave or accept help from her friend. [ 68 ] Finally, in his closing argument, defence counsel suggested that the victim invited the sexual contact by her behaviour. He stated: . . . She takes him according to her instead of taking him downstairs and asking him get on the couch, there you go. She takes him into her bedroom. She agrees there were couches.

She agrees there were other alternatives. This is a woman who just according to her put clean sheets on her bed before she made her way up. Now, I don’t know if I have to go so far as to suggest to you that maybe those are thoughts going on before but the fact of the matter is that’s what just happened. . . . [ 69 ] Suggesting that the victim’s behaviour did not “make any sense” was an attempt to discredit her credibility based on stereotypical inferences regarding how a victim of sexual assault is expected to behave.

This invited the jury to engage in prohibited reasoning (see R v CAM , 2017 MBCA 70 at para 46 ).

Suggesting that the victim’s consent could be implied by her behaviour or by the circumstances invites a mistake of law (see Barton at para 98 ). [ 70 ] In my view, while the Crown’s remarks in the first impugned comment could have been tempered somewhat, the defence approach during closing submissions warranted a comment about the inappropriate use of myths and stereotypes. [ 71 ] Although I agree that both of the Crown’s comments denigrated defence counsel and should have been phrased better, in my view, the Crown’s conduct did not prejudice the accused’s right to a fair trial and did not rise to the level of a miscarriage of justice.

In reaching this conclusion, I have considered the timing of the defence objection to the impugned comments, as well as the context of the trial as a whole (see R v Samaniego , 2022 SCC 9 at para 47 ). [ 72 ] The day after the evidence concluded, the trial judge met with counsel to conduct the pre-charge conference. He provided them with a draft of his final jury instructions and sought their input. [ 73 ] The next day, first defence counsel and then Crown counsel made their closing submissions.

After the Crown concluded its submission, the trial judge distributed copies of his final instructions to the jury and stated, “I intend then to proceed. Unless I hear from anybody else I would prefer to proceed at this time.” It was not until the trial judge had concluded his final instructions and the jury had retired to begin its deliberations that the defence raised its objection regarding the Crown’s closing submission. The concerns raised were that the comments were inflammatory, demeaning to the defence and misstated the defence position.

The defence did not request a mistrial, or any other remedial relief. [ 74 ] The defence knew what the trial judge intended to say in his final instructions and need not have waited until the conclusion of the jury instruction to determine whether, in its view, more needed to be said to address the impugned comments. [ 75 ] Without making any determination as to whether the Crown’s comments were improper, the trial judge decided not to recall the jury for further instructions; he stated that he did not want to “bring it to their attention again.”

[76] The accused argues that the trial judge erred by failing to take any remedial steps to address the impugned comments. [77] In my view, the trial judge provided clear instructions to the jury both at the beginning and at the end of the case, suchthat they were well aware that they were to accept the law as explained by him and not anyone else and that they alone were responsiblefor deciding the facts. [78] During his preliminary instructions to the jury at the beginning of the case, the trial judge told the jury a number oftimes that it was his job to explain the applicable law and their “duty to follow those instructions.” He clearly explained that the jurywas not to use “anybody else’s idea about the law” or “get [their] information about the law from any other source.” [79] The trial judge also gave a mid-trial instruction in which he explained, “Lawyers don’t always recount everything with100 percent accuracy.

That’s the role of the other counsel then to correct. And, ultimately, whatever it is, you make up your mindsabout what, in fact, happened; what the facts are. You are the judges of the fact.” [80] The trial judge explained that the lawyers would give a closing address. Importantly, he told the jury that, although thelawyers might talk about the law, their responsibility was to apply the law that he alone provided to them. He stated: . . . . . . What counsel say about the law may be correct, but it is my job as judge to tell you about the law that applies. You must take thelaw from me.

After counsel have finished their closing addresses, it is my job to tell you about the rules of law that apply in this case. You are requiredto follow all of my instructions on the law. You are not allowed to pick and choose amongst my instructions on the law, nor substituteyour own views or those of others about what the law is or should be. . . . [81] During his final instructions, the trial judge reiterated that it was his responsibility to explain the applicable law and thejury’s responsibility to decide the facts.

He explained the relevant law, including the law on credibility and the WD frameworkapplicable when an accused testifies (see R v S (WD), (SCC), [1994] 3 SCR 521). He also carefully explained the lawon sexual assault, including the elements that needed to be proven with a focus on the law on consent. Importantly, the trial judgeexplained that what he and the lawyers said was not evidence. [82] The Crown’s second impugned comment is to the effect that the accused’s version of events could not be believed andthat defence counsel was attempting to portray an “elaborate tale”.

As previously mentioned, the accused’s own evidence was that hewould avoid telling the full truth as a reflex when under stress. The Crown’s second impugned comment conformed to the accused’sevidence.

While the Crown should not have included defence counsel in its remarks, in my view, in the circumstances, the Crown’scomments would not have affected the jury’s decision. [83] Having considered the nature of the impugned comments in the context of the trial, that they were limited to theCrown’s closing address and the timing and the manner in which the objection was raised by experienced defence counsel, I am notconvinced that the Crown’s closing address “was unfair in such a way that it might have affected the decision of the jury” (Clyke at para36; see also R v McKnight, 2022 ABCA 251 at para 189; and EF at para 23).

Nor am I persuaded that the Crown’s closing addresscreated the risk of a miscarriage of justice (ibid). [84] I would dismiss this ground of appeal. Conclusion [85] In my view, the trial judge did not commit any reviewable error when he dismissed the accused’s application to admitthe prior sexual history evidence pursuant to

section 276 of the Code and the Crown’s closing address did not create an unfair trialresulting in a miscarriage of justice. [86] In the result, I would dismiss the appeal. [87] I wish to make one final comment regarding statements made by the defence at trial. Prior to the accused testifying, thedefence made an opening statement. During that statement counsel stated, “We live in a ‘me too’ environment.

Anyone who is unhappyin their experience, in their relationship, in an episode of their lives claim they too have been abused.” [88] Near the beginning of their closing submission to the jury, the defence resurrected the “me too” theme raised in theopening statement. Counsel stated, “We live in dangerous times. An environment of blame. An environment of pointing to others. Butrest assured in this me-too world, we’re also facing a he-too world.

Sometimes the person who stands in [the accused’s] chair is also avictim.” [89] As was explained by the Ontario Court of Appeal in R v Giesecke (1993), (ON CA), 82 CCC (3d)331, there is a line for defence counsel in their submissions between “enthusiastic advocacy” and “inflammatory rhetoric” (at p 334). AsPomerance J has remarked, trials must be “fair when viewed from the societal perspective” (R v Muvunga, 2013 ONSC 3076 at para 6). Notwithstanding an accused’s right to make full answer and defence, defence counsel is not permitted in their closing address in a sexual

assault trial to advance a submission having the potential to distort or undermine the integrity of the fact-finding process ( ibid ). [ 90 ] The “me too” theme had no foundation in the evidence and no relevance to this case given the nature of the allegations. By raising the “me too” theme, in both the opening and closing addresses, in my view, defence counsel’s remarks had the potential to interfere with the jury’s fact-finding responsibility. Such submissions on perceived social assumptions are inappropriate and trial judges are encouraged to instruct juries to ignore such comments. JA I agree: JA I agree: JA