Ian Ronald Harvey Graham Appellant v. Her Majesty the Queen, 2019 SKCA 63

Restriction on Publication An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published. Court of Appeal for Saskatchewan Docket: CACR3037 Citation: R v Graham , 2019 SKCA 63 Date: 2019-07-16 Between: Ian Ronald Harvey Graham Appellant And Her Majesty the Queen Respondent Before: Richards C.J.S., Jackson and Tholl JJ.A. Disposition: Application denied, appeal dismissed Written reasons by: The Honourable Mr.

Justice Tholl In concurrence: The Honourable Chief Justice Richards The Honourable Madam Justice Jackson On Appeal From: CRM 173/15, Regina Appeal Heard: April 10, 2019 Counsel: Brent Little for the Appellant Erin Bartsch for the Respondent Alan McIntyre, Q.C., for Rod Simaluk (non-party) Tholl J.A. I. Introduction [ 1 ] Mr. Graham was convicted of assault and sexual assault. He was sentenced to three years of incarceration for the sexual assault and six months incarceration (concurrent) for the assault. Mr. Graham appeals the convictions and the sentences, but has abandoned his sentence appeal. [ 2 ] Mr.

Graham asserts he was inadequately represented by his counsel at trial, resulting in a miscarriage of justice. He further submits the trial judge erred in refusing to permit him to tender evidence and cross-examine the complainant on prior sexual activity, erred by failing to consider honest but mistaken belief in communicated consent and erred in drawing factual conclusions unsupported by the evidence. Mr. Graham asks this Court to overturn the convictions and substitute an acquittal on both charges. In the alternative, Mr.

Graham requests that a new trial be ordered. [ 3 ] After examining all of the issues raised on appeal, I find none of the grounds of appeal have any merit and the appeal must be dismissed. II. Background [ 4 ] Mr. Graham and K.B. were in a dating relationship for approximately a year-and-a-half. The relationship ended late in August of 2014. In May of 2015, K.B. was going through a difficult time in her life and Mr. Graham offered to let her reside in his home to help her out financially. She accepted his offer and began residing in his house in late May or early June of 2015.

K.B. testified they were not reconciling and were simply friends. Mr. Graham testified they discussed possibly getting back together but they decided to remain friends. He further testified, however, that their relationship was complicated and they often slept in the same bed after K.B. moved into his house. [ 5 ] On the evening of July 3, 2015, Mr. Graham and K.B. went to a lounge. They met with others and had drinks with them. After several drinks, K.B. left on her own and went back to Mr. Graham’s home. Mr. Graham remained at the lounge for another hour or two.

K.B. testified that when she arrived at the house, she felt like she was going to vomit as she walked in the front door. She vaguely recalled heading to the bathroom. Her next memory was waking up in Mr. Graham’s bed to the pain of Mr. Graham attempting to have anal intercourse with her. K.B. immediately said, “Get off of me”, and kicked Mr. Graham, knocking him off the bed and into a closet. She testified she did not consent to any type of sexual contact with Mr. Graham that night. [ 6 ] In his testimony, Mr. Graham described a very different series of events. Mr.

Graham testified that he had arrived home an hour or two after K.B. had left the lounge and found the front door open, his dog out in the front yard, the lights on in the house and music playing.

He found K.B. sleeping on the bathroom floor, woke her up, took her to her own bedroom, put her to bed and went to sleep in his ownbedroom. Mr. Graham woke up later to see K.B. entering his bedroom and crawling into bed with him. She touched his penis, gave him ahand job and then performed oral sex on him. Mr. Graham described removing her pants and performing oral sex on her. Mr. Grahamtestified K.B. moved on top of him and they had vaginal intercourse, switching to K.B. being on her back and Mr. Graham on top after aperiod of time. No words were exchanged between him and K.B. at any point during this incident.

K.B. suddenly kicked him while they werehaving vaginal intercourse and he fell into the closet. He agrees the sexual activity stopped and K.B. left his bedroom after she kicked him. [7] K.B. testified to the events that followed her kicking Mr. Graham into the closet. She stated Mr. Graham followed her to herbedroom after he fell off the bed and yelled at her to get out so she went outside in the rain and sat down on the sidewalk. It wasapproximately 3:00 a.m. She was naked from the waist down. Mr. Graham came outside and told her to come back into the house but sherefused to do so and walked away from the house.

Mr. Graham grabbed her by the arms as she tried to walk away. K.B. continued to walkdown the street towards a school where she knew a police station was located. As she neared the entrance to the police station, which wasnot staffed at that time of day, Mr. Graham caught her, picked her up by the throat and threw her to the ground where she hit her head andback. [8] Contrary to K.B.’s testimony, Mr. Graham stated he left his bedroom and found K.B. sitting on his front step smoking a cigarette.He went outside and she walked towards the gate. Mr.

Graham testified he grabbed her arm to get her attention and she started runningtowards the school. He pursued her and described finding her laying in the mud on the ground after she had slipped. Mr. Graham deniedgrabbing K.B. by the throat or throwing her to the ground. [9] At the point K.B. was laying on the ground in the mud, several passersby intervened and Mr. Graham left the scene. The policeand an ambulance arrived. K.B. was transported to the hospital where a sexual assault examination was conducted and photographs of K.B.’sinjuries were taken. Mr.

Graham was arrested at his home and charged with assault and sexual assault. [10] Mr. Graham retained a lawyer to represent him. Mr. Graham was committed to stand trial on both charges after a preliminaryhearing. III. Proceedings in the Court of Queen’s Bench [11] In advance of the trial, Mr. Graham applied, pursuant to s. 276 of the Criminal Code, to adduce evidence of K.B.’s prior sexualactivity. A voir dire was held and Mr. Graham provided affidavit and viva voce evidence. The trial judge rendered a written decisiondismissing Mr.

Graham’s application (unreported April 5, 2017, decision [Voir Dire Decision]). [12] At trial, the Crown tendered testimony from K.B. and three police officers, a set of photographs depicting injuries to K.B. and adrawing made by K.B. during her testimony. Mr. Graham testified on his own behalf. The trial judge reserved his decision at the end of atwo-day trial and rendered an unreported written judgment on May 29, 2017 [Trial Decision]. In his judgment, the trial judge convictedMr.

Graham of assaulting and sexually assaulting K.B. [13] The trial judge began his reasons by setting out the essential elements of each of the two offences and then reviewed the evidenceof each of the witnesses in detail. When he commenced his analysis, the trial judge stated that “credibility is the issue in this case” (TrialDecision at para 45). He then provided a

summary of the test he was required to apply from R v W.(D.), (SCC), [1991] 1SCR 742 [W.(D.)]. [14] The trial judge dealt first with the sexual assault charge. He found K.B. to be credible and set out his reasons for doing so: “I findher very credible. Her evidence was forthright and without embellishment. It did not falter nor was it diminished by cross-examination” (TrialDecision at para 51). In evaluating Mr. Graham’s credibility, the trial judge stated, “I find that I do not believe him. His testimony has toomany inconsistencies and, in parts, is implausible” (at para 55).

Over nine paragraphs, the trial judge then provided examples of why he didnot believe Mr. Graham’s testimony. The trial judge next examined the second and third branches of W.(D.) and determined the evidence didnot raise a reasonable doubt with regard to the charge of sexual assault. [15] The trial judge repeated this analysis, in a briefer manner, in relation to the charge of assault and found Mr. Graham assaultedK.B. by grabbing her arms, seizing her by the throat and throwing her to the ground. Mr. Graham was convicted of both charges. [16] Mr.

Graham retained new counsel in advance of his sentencing hearing and retained that counsel for this appeal. IV. Issues [17] The issues in this matter are as follows: (

a) Did a miscarriage of justice occur through ineffective assistance of counsel? (

b) Did the trial judge err in denying the application to admit evidence of K.B.’s prior sexual activity? (

c) Did the trial judge err by failing to consider honest but mistaken belief in communicated consent? (

d) Did the trial judge err in drawing factual conclusions resulting in an unreasonable verdict or a verdict unsupported by theevidence? [18] The grounds of appeal regarding the admission of evidence of prior sexual activity and honest but mistaken belief incommunicated consent are intertwined with portions of the ineffective assistance of counsel argument so these two grounds will be analyzedwithin the analysis of that ground of appeal.

V. Analysis A. Ineffective assistance of counsel [19] Mr. Graham asserts his trial counsel inadequately represented him at trial, resulting in a miscarriage of justice. He alleges thefollowing issues with his trial counsel’s performance: (

a) trial counsel did not properly cross-examine K.B. on inconsistencies between her police statement, her preliminary inquirytestimony and her trial testimony; (

b) trial counsel did not address the cause of K.B.’s limping; (

c) trial counsel failed to tender K.B.’s medical report at trial; (

d) trial counsel failed to call a witness Mr. Graham instructed him to call; (

e) trial counsel failed to adequately or effectively argue the s. 276 (prior sexual history) application; (

f) trial counsel failed to argue honest but mistaken belief in consent; (

g) trial counsel failed to put Mr. Graham’s version of events to K.B., offending the rule in Browne v Dunn (1894), 6 R 67 (HL)[Browne v Dunn]); and (

h) trial counsel failed to raise K.B.’s significant drinking; [20] The first four allegations of ineffective assistance of counsel rely on the admission of fresh evidence to supplement the recordwhereas the last four allegations rely on the existing record. 1. General principles: Ineffective assistance of counsel [21] An accused who is represented by counsel at trial is entitled to receive effective legal assistance. An appellant can successfullychallenge a conviction if he or she can establish that the incompetence of counsel caused a miscarriage of justice.

The miscarriage of justicelies in the unreliability of a verdict rendered in a fundamentally flawed process: see R v S.G.T., 2011 SKCA 4 at para 37, [2011] 5 WWR 10[S.G.T.]; R v Kim, 2011 SKCA 74 at para 36, 375 Sask R 68; and R v Worm, 2014 SKCA 94 at para 109, [2014] 12 WWR 478 [Worm](leave to appeal to the SCC refused, (SCC)). [22] The general principles to be applied in the assessment of a claim of ineffectual assistance of counsel are set out in R v G.D.B.,2000 SCC 22, [2000] 1 SCR 520 [G.D.B.], as follows: [26] The approach to an ineffectiveness claim is explained in Strickland v.

Washington, 466 U.S. 668 (1984), per O’Connor J. The reasonscontain a performance component and a prejudice component. For an appeal to succeed, it must be established, first, that counsel’s acts oromissions constituted incompetence and second, that a miscarriage of justice resulted. [27] Incompetence is determined by a reasonableness standard. The analysis proceeds upon a strong presumption that counsel’s conduct fellwithin the wide range of reasonable professional assistance.

The onus is on the appellant to establish the acts or omissions of counsel that arealleged not to have been the result of reasonable professional judgment. The wisdom of hindsight has no place in this assessment. [28] Miscarriages of justice may take many forms in this context. In some instances, counsel’s performance may have resulted in proceduralunfairness. In others, the reliability of the trial’s result may have been compromised. [29] In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider theperformance component of the analysis.

The object of an ineffectiveness claim is not to grade counsel’s performance or professional conduct.The latter is left to the profession’s self-governing body. If it is appropriate to dispose of an ineffectiveness claim on the ground of noprejudice having occurred, that is the course to follow (Strickland, supra, at p. 697). … [34] Where, in the course of a trial, counsel makes a decision in good faith and in the best interests of his client, a court should not lookbehind it save only to prevent a miscarriage of justice.

While it is not the case that defence lawyers must always obtain express approval foreach and every decision made by them in relation to the conduct of the defence, there are decisions such as whether or not to plead guilty, orwhether or not to testify that defence counsel are ethically bound to discuss with the client and regarding which they must obtain instructions.The failure to do so may in some circumstances raise questions of procedural fairness and the reliability of the result leading to a miscarriageof justice. [23] This Court has applied these principles in a number of cases, including the following recent cases: Worm; R v Dreaver, 2014SKCA 133, 446 Sask R 313 [Dreaver]; R v Regnier, 2017 SKCA 83 [Regnier]; and R v P.R., 2018 SKCA 27, 365 CCC (3d) 120 [P.R.]. [24] In Regnier, Caldwell J.A. described the task faced by an appellant who alleges ineffective assistance of counsel in the followingterms: [4] In practical terms, this means Mr.

Regnier must establish either: (

a) that, had his trial counsel not performed incompetently, there is areasonable possibility the verdict would have been different, or (

b) that the incompetence of his trial counsel caused an adjudicativeunfairness: R v G.D.B., 2000 SCC 22, [2000] 1 SCR 520; R v Kim, 2011 SKCA 74, 272 CCC (3d) 15. … As Major J., who wrote for aunanimous Court in R v G.D.B., observed:

[25] The value of effective assistance of counsel is apparent, but was fully explained by Doherty J.A. in R. v. Joanisse (1995), (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.), at p. 57: The importance of effective assistance of counsel at trial is obvious. We place our trust in the adversarial process to determine the truth ofcriminal allegations. The adversarial process operates on the premise that the truth of a criminal allegation is best determined by “partisanadvocacy on both sides of the case”: U.S. v. Cronic, 104 S. Ct. 2039 (1984), per Stevens J. at p. 2045.

Effective representation by counselmakes the product of the adversarial process more reliable by providing an accused with the assistance of a professional trained in the skillsneeded during the combat of trial. The skilled advocate can test the case advanced by the prosecution, as well as marshal and advance thecase on behalf of the defence. We further rely on a variety of procedural safeguards to maintain the requisite level of adjudicative fairness inthat adversarial process.

Effective assistance by counsel also enhances the adjudicative fairness of the process in that it provides to anaccused a champion who has the same skills as the prosecutor and who can use those skills to ensure that the accused receives the full benefitof the panoply of procedural protections available to an accused. Where counsel fails to provide effective representation, the fairness of the trial, measured both by reference to the reliability of the verdictand the adjudicative fairness of the process used to arrive at the verdict, suffers.

In some cases the result will be a miscarriage of justice. [25] The purpose of the inquiry is to determine whether a miscarriage of justice occurred, not to grade counsel’s performance. Anappellate court should not embark on an exhaustive examination of the trial record for the purposes of assessing the competency of trialcounsel only to conclude the verdict would have been the same: see R v Smith, 2007 SKCA 71 at paras 6–7, 223 CCC (3d) 114 [Smith]. Ofnecessity, however, the analysis of an allegation of ineffective assistance of counsel requires an examination of the steps taken by counsel attrial.

This analysis must be conducted in the context of the record, combined with any fresh evidence that is sought to be admitted. [26] In an application such as the one at hand, there is a strong presumption of trial counsel’s competence: P.R. at para 40. In S.G.T.,Jackson J.A. described the deference that appellate courts accord to trial counsel’s performance: [41] Appellate courts have long been deferential in their assessment of trial counsel’s performance in a criminal trial. The rationale is that abroad spectrum of professional judgment exists in terms of what might be considered effective trial advocacy.

A vast array of legalstratagems, techniques and approaches could be considered tactically sound, according to the prevailing circumstances. No two advocateswill have the same kind of presentation, preferences or methodology. [27] In order to be successful in proving a miscarriage of justice occurred in this matter, Mr. Graham must establish, through clear andconvincing evidence, that counsel’s performance fell outside the acceptable professional range and that the incompetence caused amiscarriage of justice: S.G.T. at para 49. Put another way, Mr.

Graham must establish there is a reasonable probability that, but for counsel’serrors, the result would have been different: see R v Hagedorn, 2014 ONCA 681 at para 6 (leave to appeal to the SCC refused,); R v Wong, 2018 SCC 25 at para 81, [2018] 1 SCR 969; and R v Atzenberger, 2018 BCCA 296 at para 64–66. The focus of the inquirymust always remain on determining whether there was a miscarriage of justice. 2. Fresh evidence application [28] Mr. Graham applied to tender fresh evidence consisting of the following: (

a) the preliminary hearing transcript; (

b) a medical report on K.B.; (

c) a DVD containing the police interview of K.B.; and (

d) Mr. Graham’s affidavit sworn May 8, 2018. [29] Mr. Graham’s trial counsel provided an affidavit in response and was cross-examined by Mr. Graham’s appellate counsel duringthe hearing of the appeal. [30] At the hearing of the appeal, Mr. Graham agreed he was only applying to have the fresh evidence admitted for the purpose of theineffective assistance of counsel ground of appeal. The Crown consented to this evidence being assessed with respect to this ground ofappeal, with the exception that the Crown objected to the admission of specific paragraphs of Mr. Graham’s affidavit.

As noted above, onlythe first four allegations of ineffective assistance of counsel rely on the admission of fresh evidence. [31] The test for the admission of fresh evidence, when ineffective assistance of counsel is alleged, is different than the standard testfor the admission of fresh evidence on appeal found in R v Palmer, [1979] 1 SCR 759. The criterion of due diligence is not applied: see R vMoore, 2002 SKCA 30 at paras 36–37, [2002] 7 WWR 424; Smith at para 30; and R v Aisaican, 2019 SKCA 58 at para 16.

In Dreaver,Richards, C.J.S. summarized the test for an application such as the one at hand: [33] … The test for determining whether fresh evidence of this kind should be admitted is not the familiar one set out in R v Palmer, (SCC), [1980] 1 SCR 759. Rather, the governing authorities indicate that evidence of the sort in issue here should be admitted if itis (

a) relevant to an issue before the Court, (

b) credible, and (

c) sufficient (if uncontradicted) to warrant the making of the order sought. See:United States of America v Shulman, 2001 SCC 21 at para 45, [2001] 1 SCR 616; R v S.G.T., 2011 SKCA 4 at paras 39–40, 265 CCC (3d)550. … [35] In my view, the proposed fresh evidence does not meet the test for admission. More specifically, it fails the test because it is notsufficient to warrant the relief sought by Mr. Dreaver, i.e., it does not establish that Mr. Dreaver was prejudiced by the allegedineffectiveness of counsel and thus does not lead to a conclusion that his conviction should be set aside and a new trial ordered.

This meansthe application must be dismissed. [32] Utilizing the three-part test set out in Dreaver, I will analyze the fresh evidence that is applicable to each of the first four

allegations of ineffective assistance of counsel. a. Failure to adequately cross-examine [ 33 ] Mr. Graham submits trial counsel failed to properly cross-examine K.B. He alleges his trial counsel failed to confront K.B. with inconsistencies in her testimony as compared to her recorded video statement and her preliminary inquiry testimony. The fresh evidence sought to be admitted under this allegation consists of the preliminary inquiry transcript, the DVD containing the video recording of K.B.’s statement to the police and the following portions of Mr. Graham’s affidavit: 8.

On December 17, 2015, Mr Simaluk conducted my Preliminary Inquiry. I was present for the proceedings. Mr Simaluk did not ask the complainant any questions about the Video Statement. … 10. During the trial, I wrote down approximately 10–15 questions that I wanted Mr Simaluk to ask, and he only asked one of the questions. Both myself and my girlfriend … made notes during the complainant’s testimony at trial regarding inconsistencies in her version of events, but Mr Simaluk did not review these notes prior to cross-examining the complainant. He did not ask the complainant any questions about the Video Statement. 11.

My present solicitor has advised me that he requested and received a copy of the disclosure in relation to this matter. He further advises that the disclosure includes officer notes, the Video Statement, and a medical report for the complainant. 12. My present solicitor has further advised me that he was unable to locate any notes made by Mr Simaluk regarding the Video Statement made by the complainant. … 14.

My present solicitor advises me that neither the disclosure package from the Crown nor the contents of Mr Simaluk’s file contain a copy of a transcript of the complainant’s Video Statement. [ 34 ] An appellate court must be cautious in second guessing cross-examination strategies at trial. In P.R ., Herauf J.A. noted the following about the failure to cross-examine on inconsistencies: [42] The appellant has the onus of establishing that his counsel’s professional judgment was unreasonable in the circumstances and that this unreasonable professional judgment caused a miscarriage of justice: R. v.

B.(G.D.) at para 27 . While the appellant has identified certain inconsistent statements in respect of which his counsel did not cross-examine the complainant, he has failed to establish these omissions amount to unreasonable professional judgment that reach the threshold of incompetence. [43] The art of cross-examination necessarily includes an element of trial strategy.

Upon review of the circumstances in this case, I am of the opinion it is reasonable to assume counsel’s decision to not cross-examine the complainant on certain inconsistencies was a tactical decision. … [44] Given the circumstances of the case, counsel had to determine whether certain lines of questioning would be beneficial or prejudicial to his client’s case. I am of the opinion counsel’s approach to cross-examination in this case does not merit a finding of incompetent trial counsel pursuant to R v G.D.B. and R v Short [2012 SKCA 85].

Therefore, this ground of appeal must be dismissed. [ 35 ] The Ontario Court of Appeal has also recently addressed the allegation of a failure to cross-examine on inconsistences.

In R v Jonah , 2019 ONCA 207 , the Court described the task to be undertaken by an appellate court as an examination of the matter to determine whether there was a reasonable probability a different cross-examination strategy would have resulted in a different verdict : [6] Concerning this issue, the appellant has not established a reasonable probability that a different cross-examination strategy would have resulted in a not guilty verdict.

Although the trial judge noted in his reasons that L.R. was not challenged in cross-examination on several aspects of her evidence, he also concluded that the defence theory that L.R. might have started the fire was implausible. … In the circumstances, we conclude it is not reasonably probable that any failure to cross-examine L.R. concerning, in particular, any potential motives she might have had for starting the fire, and any failure to challenge L.R. about whether she had started the fire or sent a particular text message (matters which she had denied in examination in-chief), would have affected the verdict. [ 36 ] As a preliminary point on this ground of appeal, Mr.

Graham initially criticized trial counsel for not making any notes of K.B.’s police interview and queried whether trial counsel had watched the video-recorded interview. During his testimony at the hearing of the appeal, trial counsel testified he had watched the video-recorded interview and had made notes on his computer as he did so. The notes, along with the associated metadata, were printed and produced for this appeal. During his submissions, Mr.

Graham accepted that the video recording had been reviewed and that notes had been made, but then criticized trial counsel for not having the notes of the police video- recorded statement with him at the trial. Trial counsel testified he did not notice any inconsistencies between the video-recorded interview and the detailed

summary of the interview that had been provided by the police. Trial counsel had the police

summary with him at the trial, ready to be used for the purposes of cross-examination if required. At the argument of the appeal, Mr. Graham’s appellate counsel could not point to any discrepancies between the police

summary and the actual video recording. As a result, the notes made by trial counsel would have added nothing to the police

summary and their absence from trial counsel’s file at trial was inconsequential. Mr. Graham’s argument on this point is accordingly without merit. [ 37 ] Mr. Graham further submits the following alleged inconsistencies should have been put to K.B. during cross-examination: (

a) In her statement to the police, K.B. testified she was “dizzy”. In her preliminary inquiry testimony, she testified she “blacked

out”. During the police statement, she claimed to have no memory of much of the evening, but remembered the events of the evening for her trial testimony. (

b) K.B. testified Mr. Graham pushed her towards the door after she kicked him, she ran into her room, Mr. Graham continued to yell “get out” and he got her to the door. In her statement to police, she stated she hid under a blanket in her bedroom, which was ripped off by Mr. Graham who yelled at her to “get out”. (

c) In her statement to the police, K.B. stated she did not know if she was penetrated but thought Mr. Graham was “just entering her” as she woke up. At trial she testified she was woken up by Mr. Graham trying to enter her and testified she assumed she had been penetrated. (

d) Mr. Graham also alleged several other minor inconsistencies between K.B.’s statement to the police and her trial testimony regarding the sequence of events after K.B. left the house. [ 38 ] In his affidavit on the issue of ineffective assistance, trial counsel deposed he knew the anticipated evidence of K.B. and Mr. Graham “meant that the Court would need to choose between a witness who had previously experienced blackouts and had gaps in her memory versus Mr. Graham’s version of events” (at para 14).

During cross-examination at the hearing of this appeal, trial counsel further testified regarding his strategy in this matter. Trial counsel indicated he had assessed K.B. as being a good witness at the preliminary inquiry and was concerned that a large amount of cross-examination might make her an even stronger and more sympathetic witness. He had also assessed Mr. Graham as being well spoken and believed he would make a good witness. His strategy was to let Mr.

Graham provide his contrary evidence with success in the case turning on that evidence being accepted or raising a reasonable doubt. [ 39 ] I have examined the inconsistencies alleged by Mr. Graham and find them to be overstated or immaterial in nature. K.B. provided the same material details of the incident in her police statement, in her preliminary inquiry testimony and in her testimony at the trial. An examination of the trial transcript reveals trial counsel did probe K.B.’s evidence on cross-examination within the confines of the strategy he had adopted.

For example, under cross-examination, K.B. admitted she did not know how her pants came off and that she did not remember anything between the time she walked to the bathroom and the point she woke up in Mr. Graham’s bed.

It is not surprising trial counsel would not ask questions about K.B. hiding under the blanket because, while this detail was left out of K.B.’s earlier narrative, asking about it would not have exposed an inconsistency and would have merely added a further damaging piece of evidence. [ 40 ] It is also difficult to see how cross-examining K.B. further on the issue of penetration would have advanced Mr. Graham’s case. She had already testified she was awoken by the contact of Mr. Graham’s penis with her anus and “assumed” she had been penetrated.

As noted in more detail below, the trial judge was fully aware that K.B. was uncertain about the level of penetration so the goal of establishing her uncertainty about this detail was accomplished. I am of the opinion that Mr. Graham has failed to establish there was a reasonable probability a different cross-examination strategy would have resulted in a different verdict. No miscarriage of justice arose from this issue so the evidence is not sufficient to warrant making the order sought by Mr. Graham. The fresh evidence cannot be admitted on this issue. b.

Failure to address the cause of K.B.’s limping [ 41 ] Mr. Graham submits his trial counsel should have cross-examined K.B. about the cause of a limp observed during her police interview because K.B. broke her ankle prior to the offence date. During the trial, Cst. Strueby testified to the following observations of K.B. at the hospital that night: [W]hen she got up, like she labored to get out of bed a little bit. She looked -- appeared like she was sore. And then we walked to the car, she took short steps and was -- appeared to be quite sore.

She was kind of wincing when she took steps, and she didn’t take a normal stride. She, kind of, took just small -- smaller steps. [ 42 ] The trial judge relied on her manner of walking as being supportive of K.B.’s version of events. He found as follows: “I also note that Cst. Strueby noted that she appeared to be sore and walked in a halting fashion. This is some corroboration of the complainant’s evidence that she was violently thrown to the ground by [Mr. Graham]. The photographs are also supportive of K.B.’s version of events” ( Trial Decision at para 62). Mr.

Graham submits the fact that the ankle had been broken previously should have been put to K.B. in cross- examination to establish an innocent explanation for the limping. [ 43 ] Mr. Graham seeks to have fresh evidence admitted on this issue, which consists of a DVD containing the video recording of K.B.’s statement to the police and the following portions of his affidavit: 12. My present solicitor has further advised me that he was unable to locate any notes made by Mr Simaluk regarding the Video Statement made by the complainant. 13.

My present solicitor has advised me that he has obtained a copy of the Video Statement as part of the disclosure provided by the Crown. My present solicitor has advised me that he has reviewed the Video Statement, and that the complainant is limping when she enters the interview room at the police station. She advises the police at the outset of the statement that her ankle had been previously broken, and that she further advises that her limp had not been caused by anything I had done.

The Learned Trial Judge specifically mentions the complainant’s limp as corroborating her version of events. [ 44 ] In light of Cst. Strueby’s testimony, it might have been better if trial counsel had led evidence about the prior injury K.B. had disclosed during the police interview; this might have provided an alternative or additional explanation for the reason why Cst. Strueby observed her to be walking in a halting fashion. But K.B. testified as follows regarding why she had trouble walking:

Q What did the EMT’s do for you? A They assisted me into the ambulance because I couldn’t walk. Q Why couldn’t you walk? A My -- the back -- well, from being on the cement, being thrown onto the cement, I -- it was hard for me to walk because of how painful it was. … Q So, that -- you said that he -- he slammed you onto the cement? A Yes Q Okay. Was that the sidewalk? A Yes, the sidewalk. [ 45 ] Other than these questions, K.B. was not asked by the Crown or defence why she was walking in the manner observed by Cst. Strueby. Mr. Graham testified she had been able to run down the street after leaving the house.

Unknown answers to questions about a pre-existing injury may or may not have fit with Mr. Graham’s assertion that she had run down the street and slipped on her own accord. Asking questions in cross-examination about the limp may have helped or may have harmed Mr. Graham’s defence. Hindsight demonstrates the trial judge relied on this evidence to Mr. Graham’s detriment, but a court is not to apply hindsight in its evaluation of trial counsel’s performance. Based on the record, the effect of not putting a question to K.B. about the broken ankle is unknown.

This leaves the question of whether using the video-recorded interview would have been helpful in this area of cross-examination. [ 46 ] As a starting point, the words Mr. Graham averred in his affidavit that K.B. supposedly used during the video-recorded police interview about her limping are not completely accurate. During the police interview, K.B. had told the interviewer she had previously broken her ankle and that the break had not been caused by Mr. Graham. However, as noted below, she did not tell the interviewer the limp was not caused by anything Mr. Graham had done. The portion of Mr.

Graham’s affidavit where he recounts what was said during the interview is, therefore, not credible and cannot be admitted for that reason. [ 47 ] The fresh evidence contained in the video-recorded interview of K.B. does indicate K.B. broke her ankle through no fault of Mr. Graham, but it does not establish that the break caused her to move in the manner observed by Cst. Strueby on July 4th. At the start of the interview, K.B. is seen limping as she comes into the interview room and can also be seen limping when she stands up to get a tissue a few minutes later.

She again limps as she leaves the room at the end of the interview. At the 21:23:30 point of the interview, the interviewer asked K.B. whether she had any physical injuries caused by Mr. Graham as a result of the events that occurred outside of the house. In her response, K.B. told the interviewer about bruises on her arms, bruises on her neck and a “big goose egg” on the side of her head. She then pointed to her back and continued to describe the injuries caused by Mr.

Graham when he threw her to the ground: “my lower back and kind of like my liver area I guess you could say is all -- they said it was muscular damage more so than any kind of bruising, so -- umm -- that. I did have -- previously have a broken ankle but it’s okay -- he didn’t break it or anything”. [ 48 ] Putting the portion of the video-recorded interview to K.B., where she stated she had a broken ankle that was not caused by Mr. Graham, would not have assisted Mr. Graham.

In that same portion of the video-recorded interview, K.B. described the injuries to her back in a manner that was completely consistent with the testimony she had already given, but with additional harmful detail. The fact of a previously broken ankle unrelated to Mr. Graham would not have detracted in any meaningful way from K.B.’s description of her injuries or Cst.

Strueby’s description of his observations. [ 49 ] Finally, at best, only a small amount of potential prejudice flowed from this issue because, on reading the trial judge’s reasons as a whole, this factor did not receive significant weight and was far from a determinative factor. There is no miscarriage of justice arising from this allegation; therefore, the evidence is not sufficient to warrant making the order sought by Mr. Graham. The fresh evidence cannot be admitted in relation to this allegation. c. Failure to tender the medical report [ 50 ] Further to his argument on ineffective assistance, Mr.

Graham submits trial counsel should have tendered K.B.’s medical report to establish there was no bruising or damage to her anal region. He seeks to tender the medical report and the following portion of his affidavit: 15. My present solicitor has advised me that the disclosure contained a medical report for the complainant, from the date she attended the hospital following the alleged sexual assault and assault. Mr Simaluk made brief reference to the medical report during his cross-examination of the complainant, but did not attempt to introduce this medical report as evidence at the trial.

The medical report contains no evidence of tearing or trauma to the complainant’s anal area. My present solicitor has advised me that Mr Simaluk’s file contains no notes about the possibility of consulting a medical expert about what this lack of evidence may indicate in relation to non-consensual anal sex. [ 51 ] The flaw in this submission is that anal trauma was not alleged and the trial judge did not rely on any bruising or damage to K.B.’s anal region in his decision. On appeal, Mr.

Graham did not seek to tender fresh expert evidence indicating such damage or bruising would be expected, based on K.B.’s description of the events, and did not submit counsel should have obtained such an expert opinion. The Crown correctly pointed out the medical report also contains details of K.B.’s physical injuries caused by the assault and confirms the injury she described as a goose egg on her head, when this was otherwise unclear in the Crown’s evidence. As such, tendering the medical report may have bolstered the Crown’s case as opposed to assisting Mr. Graham. Accordingly, there is no merit in Mr.

Graham’s submission that the failure to tender the medical report resulted in a miscarriage of justice and the evidence cannot be admitted on this point. d. Failure to call an additional witness

[ 52 ] Mr. Graham alleges his trial counsel failed to call a witness he instructed him to call. The only evidence regarding this witness is found at paragraph 9 of Mr. Graham’s affidavit: 9. I instructed Mr Simaluk to call a third party witness, who was with both the complainant and myself on the night of the offence, who could testily to the complainant’s behaviour and alcohol consumption that night. Mr Simaluk did not do so, and did not discuss this with me. To my knowledge, he did not speak with the third party witness, and did not subpoena her for trial. My present solicitor has advised me that Mr Simaluk’s file notes do not refer to this conversation. [ 53 ] The witness is not named. A

summary of the evidence the witness could have provided is not included. Mr. Graham deposed the witness was with him and K.B. on the night of the incidents and could have testified as to the complainant’s behavior and alcohol consumption. This proposed witness’s testimony must be related to the events of the evening of July 3rd, several hours before the incidents that formed the basis for the charges, because the evidence was consistent that Mr. Graham arrived home several hours before the incidents and no other person was present in the home during the sexual assault. [ 54 ] Mr.

Graham acknowledges his evidence regarding K.B.’s alcohol consumption and her level of intoxication at the lounge was consistent with K.B.’s evidence of her alcohol consumption and level of intoxication at the lounge. I do not know what the proposed witness would have said but, presumably, she would not have contradicted Mr. Graham’s evidence of the events leading up to K.B. leaving the lounge or he would not now be asserting the witness should have been called. Based on the limited potential utility of calling this witness, I cannot conclude deciding to not call her resulted in a miscarriage of justice.

There is no evidence Mr. Graham suffered any prejudice by the failure to call this further witness who, on the basis of Mr. Graham’s affidavit, might confirm facts that were not in dispute as between K.B. and Mr. Graham. The fresh evidence cannot be admitted on this issue. e.

Conclusion on the fresh evidence application [ 55 ] After examining the proposed fresh evidence in the context of the trial transcript, the Trial Decision , counsel’s submissions and all of the above alleged allegations of ineffectiveness, I have determined no miscarriage of justice has occurred in this matter in relation to the first four allegations of ineffective assistance. As a result, the relief sought cannot be granted on the basis of fresh evidence and the application to admit fresh evidence must be denied. 3.

Analysis of ineffective assistance of counsel claims that do not rely on the admission of fresh evidence [ 56 ] None of the proposed fresh evidence is relevant to the remaining four areas where ineffective assistance of counsel is alleged. These allegations will be analyzed on the basis of the record. a. The past sexual history application [ 57 ] There are two prongs to the grounds of appeal related to the application under s. 276 of the Criminal Code . Firstly, Mr. Graham asserts his trial counsel failed to properly conduct the s. 276 application, resulting in the application being denied. Secondly, Mr.

Graham submits the trial judge erred by dismissing his application to adduce evidence of K.B.’s prior sexual activity. As these two issues are inextricably intertwined, I will address them concurrently. [ 58 ] In advance of trial, Mr. Graham applied to adduce evidence of alleged prior sexual activity between him and K.B. This triggered the application of ss. 276 , 276.1 and 276.2 of the Criminal Code .

The relevant portions of those sections are as follows: Evidence of complainant’s sexual activity 276(1) In proceedings in respect of an offence under [section 271], 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. Idem

(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 that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set 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.

Factors that judge must consider

(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account (

a) the interests of justice, including the right of the accused to make a full answer and defence; (

b) society’s interest in encouraging the reporting of sexual assault offences; (

c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case; (

d) the need to remove from the fact-finding process any discriminatory belief or bias; (

e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury; (

f) the potential prejudice to the complainant’s personal dignity and right of privacy; (

g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and (

h) any other factor that the judge, provincial court judge or justice considers relevant. Application for hearing 276.1(1) Application may be made to the judge, provincial court judge or justice by or on behalf of the accused for a hearing under

section 276.2 to determine whether evidence is admissible under subsection 276(2). Form and content of application

(2) An application referred to in subsection (1) must be made in writing and set out (

a) detailed particulars of the evidence that the accused seeks to adduce, and (

b) the relevance of that evidence to an issue at trial, and a copy of the application must be given to the prosecutor and to the clerk of the court. … Judge may decide to hold hearing

(4) Where the judge, provincial court judge or justice is satisfied … (

c) that the evidence sought to be adduced is capable of being admissible under subsection 276(2), the judge, provincial court judge or justice shall grant the application and hold a hearing under

section 276.2 to determine whether the evidence is admissible under subsection 276(2). … Judge’s determination and reasons 276.2(1)

(3) At the conclusion of the hearing, the judge, provincial court judge or justice shall determine whether the evidence, or any part thereof, is admissible under subsection 276(2) and shall provide reasons for that determination, and (

a) where not all of the evidence is to be admitted, the reasons must state the part of the evidence that is to be admitted; (

b) the reasons must state the factors referred to in subsection 276(3) that affected the determination; and (

c) where all or any part of the evidence is to be admitted, the reasons must state the manner in which that evidence is expected to be relevant to an issue at trial. [ 59 ] Sections 276.1 and 276.2 of the Criminal Code have subsequently been repealed and replaced by s. 278.93 and s. 278.94 , but nothing in this appeal turns on those changes because s. 276.1 and s. 276.2 were in force at the time of the offence: see

An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments of another Act , SC 2018, c 29 [ Amending Act ]. [ 60 ] An application under s. 276 is a structured, two-stage process. The first stage is set out under s. 276.1 . If the procedural requirements are met and the judge finds the applicant’s affidavit discloses relevant evidence capable of being admissible under ss. 276.1(4) (

c) and 276(2), the judge moves on to stage two and holds a voir dire under s. 276.2 to determine the admissibility of the proposed evidence: R v Darrach , 2000 SCC 46 at para 2 , [2000] 2 SCR 443 [ Darrach ]. [ 61 ] Not long after the Voir Dire Decision was released in April of 2017, the Alberta Court of Appeal provided a

summary of the application process in R v Barton , 2017 ABCA 216 , 354 CCC (3d) 245 [ Barton (ABCA) ]. While the decision was reversed in part by the Supreme Court in R v Barton , 2019 SCC 33 [ Barton (SCC) ], the following

summary of the application process was not disturbed on appeal ( Barton (ABCA) ): [92]

Section 276 now sets out a mandatory and structured decision-making process when the defence wishes to adduce evidence of prior sexual conduct. It requires a written application by the defence to determine whether the evidence is admissible, usually before the trial

begins; prohibits the “twin myths” reasoning; establishes the criteria to be applied to evidence adduced for non-prohibited purposes; andrequires judges to provide reasons, and set out the allowable purposes, for any evidence ruled admissible. [93] At the application stage, an affidavit is required detailing particulars of the evidence sought to be adduced and its relevance to an issue attrial. This gives the Crown notice so they may prepare and respond to arguments about admissibility: R v Wright, 2012 ABCA 306 at para 8,536 AR 320 [Wright].

If the trial judge does not screen out the evidence as clearly inadmissible, the written application is followed by anevidentiary hearing. To protect the complainant’s equality and privacy rights, that hearing is held in camera in the absence of the jury. Theaffiant must submit to cross-examination limited to whether the proposed evidence is admissible. While evidence elicited through cross-examination cannot subsequently be used to establish guilt, it can be used to challenge credibility: R v Darrach, 2000 SCC 46 at para 67,[2000] 2 SCR 443 [Darrach].

In determining admissibility, a judge must take into account a list of factors, including the need to removefrom the fact-finding process any discriminatory belief or bias: s. 276(3) of the Code. Further, s. 276.4 specifically requires a trial judge toinstruct the jury on the uses that it may – and may not – make of sexual conduct evidence ruled admissible. [94] The Supreme Court upheld the constitutionality of the current version of s. 276 in R v Darrach. It stressed that an accused does not havethe right “to adduce misleading evidence to support illegitimate inferences”: Darrach, supra at para 37.

Since s. 276(1) only excludesirrelevant evidence, it does not infringe an accused’s rights. (Italic emphasis in original) [62] The decisions in Darrach and Barton (ABCA) confirm the first step in a s. 276 application is a filtering process under s. 276.1 todetermine if a voir dire should be held as a second step under s. 276.2. The following was set out by Karakatsanis J. for the majority in R vGoldfinch, 2019 SCC 38 [Goldfinch]: [55] … The application judge must be satisfied that the evidence is capable of being admitted under s. 276(2) before ordering a voir dire(s. 276.1(4)(c)).

Judges who admit such evidence must also provide written reasons identifying the relevance of the evidence admitted(s. 276.2(3)(c)). These procedural requirements reflect the fact that sexual assault prosecutions require heightened attention to the generalprinciple that no party should be allowed to distort the process by producing irrelevant evidence … . (Footnotes and citations omitted) [63] In this matter, the two stages of the s. 276 application proceeded at the same time without the trial judge first making a decisionat stage one under s. 276.1.

Trial counsel and Crown counsel both informed the trial judge this was how such an application had been doneby each of them in the past in other matters. They both wished to proceed in this manner. Although he expressed some hesitation inproceeding in this way as the hearing progressed, the trial judge found this was a practical way to proceed and a voir dire was held. The trialjudge observed several times throughout the voir dire that the s. 276 application remained a two-step process. During the voir dire,Mr.

Graham’s affidavit was tendered, he provided viva voce evidence and he was subject to cross-examination. After hearing submissionsfrom the parties on s. 276.1 and s. 276.2, the trial judge reserved his decision on the admissibility of the proposed evidence. [64] Although the combined procedure for a s. 276 application that was employed in this process should not be encouraged, there wasultimately no unfairness or prejudice to Mr. Graham resulting from this combined procedure. In the end, Mr.

Graham received the benefit ofa more comprehensive procedure than what was required. [65] In the Voir Dire Decision, the trial judge determined the evidence did not satisfy the test at stage one under s. 276.1. Relying on Rv D.L., 2015 ONSC 4631, the trial judge found there needed to be an “arguable basis for admissibility” (at para 20). The applicationdescribed the alleged relevance went to the issue of consent or honest but mistaken belief in consent. The trial judge found Mr.

Graham’sdefence would consist of an assertion that the incident of July 4th was consistent with prior sexual activity between him and K.B. Hedetermined the proposed evidence was not capable of admission because it was not relevant to consent or honest but mistaken belief inconsent. The trial judge found the application was a textbook example of an attempted use of the twin myths set out in s. 276(1)(

a) ands. 276(1)(

b) of the Criminal Code. The application was dismissed at stage one on the basis the evidence was not capable of admission. Giventhe fact the two stages set out in s. 276.1 and s. 276.2 had been combined in one hearing, the trial judge determined it was necessary tocontinue on to the second stage and, after further analysis, determined the application failed at stage two as well. [66] The twin myths referred to by the trial judge require some further explanation.

The twin myths consist of the false belief thatbecause a complainant engaged in prior sexual activity he or she is (a) “more likely to have consented to the sexual activity” that forms thebasis of the charge, or (b) “less worthy of belief” (s. 276(1)(a–b)). The use of evidence for these purposes is prohibited by s. 276(1). For themajority in Barton (SCC), Moldaver, J., beginning at paragraph 55 with the title “A Brief History of the

Section 276 Regime”, provided ahistory of the twin myths and the role s. 276 plays in dispelling these myths: [55] Historically, the Code did not place any specific limits on the admissibility of evidence about a complainant’s prior sexual activities orthe uses to which that evidence could be put.

Consequently, there was nothing stopping counsel from adducing such evidence through cross-examination of the complainant and arguing, based on myths and stereotypes that were aided and abetted by the common law, that itundermined her credibility or increased the likelihood that she consented to the sexual activity in question because she had a propensity toconsent (see H. C. Stewart, Sexual Offences in Canadian Law (loose-leaf), at § 7:400.10).

In this way, evidence of prior sexual activities wasused to “blacken the character of the complainant, distort the trial process, and undermine the ability of the criminal justice system toeffectively and fairly try sexual allegations” (R. v. L.S., 2017 ONCA 685, 40 C.R. (7th) 351, at para. 79). [56] In 1982, however, … Parliament tabled the first “rape shield” provisions … These provisions restricted the right of defence counsel inproceedings “in respect of” certain sexual offences to adduce evidence of a complainant’s sexual conduct on other occasions.

One of the coreobjectives of these provisions was to debunk the “twin myths” … . [57] Almost a decade later, in R. v. Seaboyer, (SCC), [1991] 2 S.C.R. 577, this Court struck down s. 276 of the Code … .The Court determined that although the provision had the laudable goals of abolishing the outmoded, sexist use of sexual activity evidence, it“oversho[t] the mark and render[ed] inadmissible evidence which may be essential to the presentation of legitimate defences and hence to afair trial” (p. 625).

In its stead, the Court articulated common law principles governing the admissibility of sexual activity evidence. [58] In the wake of Seaboyer, Parliament enacted a new s. 276 regime in 1992 … . The animating purposes behind this new regime, aligned

with those of its predecessor, were to protect the integrity of the trial by excluding irrelevant and misleading evidence, protect the accused’sright to a fair trial, and encourage the reporting of sexual offences by protecting the security and privacy of complainants (see Seaboyer, atpp. 605–6; R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at paras. 19 and 25).

It essentially codified the principles set out by this Courtin Seaboyer (see Darrach, at para. 20) and established substantive rules that prevent evidence of a complainant’s sexual activities from beingused for improper purposes, backed by procedural requirements designed to enforce these rules. This general framework, which survived aconstitutional challenge in Darrach, remains in place today, albeit in amended form. (Footnotes omitted) [67] As can be seen from the above excerpt from Barton (SCC), s. 276 seeks to balance the rights and interests of the complainant andthe accused.

The requirement to examine this balance carefully was reiterated by Karakatsanis J., for the majority, in Goldfinch at paras 2,28, 39 and 50. [68] Turning to the matter at hand, Mr. Graham submits the trial judge erred when it came to the s. 276 application. He argues thepast sexual history between him and K.B. was relevant to honest but mistaken belief in consent and should have been admitted into evidence. [69]

Section 276.5 of the Criminal Code deems a determination under s. 276.2 to be a question of law, so that portion of the decision isreviewable on a correctness standard.

However, deference is to be given to the trial judge’s determination of relevance and prejudicial versusprobative value: Darrach at para 71, R v Catellier, 2018 MBCA 107 at para 2, and R v M.T., 2012 ONCA 511 at para 54, 289 CCC (3d) 115.Section 276.5 was subsequently repealed and replaced by s. 278.97, but nothing in this appeal turns on that amendment because s. 276.5 wasin place at the time of the offence: see the Amending Act. [70] I find the trial judge in this matter did not err in dismissing the application to adduce evidence of prior sexual activity.

Thatevidence was simply of no possible relevance to any issue in dispute in the matter. If the applicant cannot identify the possible relevance toany issue in dispute, the evidence is not capable of being admitted and cannot meet the requirement set out in s. 276.1(4)(c). The proposedevidence in this matter was properly screened out as being clearly incapable of being admissible at step one: R v Ecker (1995), (SK CA), 128 Sask R 161 (CA) at para 61 [Ecker], and Barton (ABCA) at para 93.

I say this for the following reasons. [71] For the evidence to be capable of admission at the first step under s. 276.1, an accused person must be able to specifically identifythe potential relevance of the evidence. The proposed purpose of the evidence must be identified with sufficient precision to allow the trialjudge to apply s. 276(2) and weigh the factors from s. 276(3): Goldfinch at paras 5, 40 and 51. There must be a connection between theevidence and the accused’s defence: Darrach at paras 56–57. This is not an onerous obligation at the first stage as it entails only a facialconsideration of relevance.

Trial judges are required to exercise caution at stage one, and only screen out evidence if it is clearly incapable ofadmission; but a trial judge has an obligation to determine if the evidence is facially relevant at stage one: Ecker at para 61. The questionmust be asked and answered as to what disputed issue the evidence of prior sexual activity is potentially relevant. While it may be trite to sayit, only relevant evidence is capable of admission.

A trial judge does not make a determination of ultimate relevance or admissibility at trialat stage one, but there must be some facial relevance to the proposed evidence in order to proceed to stage two. Evidence is relevant if itmakes a fact in issue more or less likely to be true. If no such fact in issue can be identified, except in terms of broad generalities, or in termsof the impermissible purposes set out in s. 276(1)(

a) and s. 276(1)(b), the evidence cannot be capable of admission and the applicationshould be dismissed at stage one. [72] I have re-examined the evidence tendered at the voir dire and counsel’s submissions, both during the voir dire and on appeal,within the bounds of allowable review on appeal, in an attempt to identify the possible relevance of the proposed evidence. During theargument of the s. 276 application, trial counsel drew to the trial judge’s attention that Mr.

Graham alleged he and K.B. had engaged insexual intercourse in the past when she had been drinking and further alleged they had occasionally engaged in sexual intercourse after shehad moved into his home in 2015. Trial counsel further submitted there would be a credibility issue. When the trial judge challenged trialcounsel to specify the purpose of tendering this evidence of prior sexual history, trial counsel provided the following response: The Criminal Code clearly says we cannot ask about prior sexual history, we know that, the two reasons “the twin myths” that youmentioned.

However case law has suggested, look, in certain circumstances defence can ask questions of the complainant regarding priorsexual history with the consent of the court, with the order of the court if they find that it is probative. In this case we think it’s veryprobative, it goes towards the credibility of the witness, but also what was in my client’s mindset at the time the incident took place. Weindicate she had sex with him, we indicate she had been intoxicated before. My client indicates she didn’t refuse to have sex.

So we want tobe able to bring that up at the trial to determine whether or not he had a mistaken belief in consent of this young lady. [73] The trial judge continued to prevail upon trial counsel to provide a further explanation as to the purpose of the evidence and trialcounsel offered this further argument: And we’re saying in this particular case there is a great -- in this application there is a great deal of evidence that these two did have sexualrelations, that they had sexual relations while she was intoxicated and sexual relations when she initiated matters.

And we’re saying in orderfor the Court to get a good idea of what actually happened on that night we should be allowed to ask her questions regarding the previoussexual relations. … Our position is there was a sexual relationship, the circumstances are very similar to what we have on the alleged incident, we think it’s veryimportant for this Court to allow us to delve into that at the trial to get a full idea of what happened and also in the interests of justice.

Tono[t] allow, we suggest, might close the door to my client in pursuing a strong defence. … But I think it’s very important for this Court to hear what does this woman have to say about the allegations my client has indicated in hisaffidavit. And I think it’s valid comments by him, he swore to it, indicated to have a relationship. I think the transcript indicated that they sortof had a relationship starting in 2000 -- she said 2012 in the transcript and I think it’s 2013, we can get into that later. But for some time theyknew each other.

Why can’t we pursue further and try to clarify exactly what happened on that morning. … we want to ask questions about the relationship she had with this gentleman prior to the incident. And I think it’s important to do not onlyjust the one month before when he returned to Regina, but also when the relationship started earlier in 2013. We think it’s important that we

are able to ask her questions related to the entire relationship, not just the recent one-month period of time where she moved into his house, asyou indicated, as a roommate. [74] After hearing viva voce evidence from Mr. Graham, trial counsel made the following final submissions to the trial judge: I guess I’ll go back to the -- one of the comments I made earlier, I think it serves justice that this Court has the opportunity to hear at the trialthe nature of the relationship between these two people.

I think it’s important -- we don’t want to know about the lady’s sexual historyregarding other people, but I think it would be important to have the sexual relations. Certainly I think this Court should have the opportunityto determine whether or not it’s probative and it provides this Court with an idea of what actually might have happened on the day inquestion. We have the first phase, we’ve mentioned it several times, he returns to Estevan. We have the second phase, where he returns to Regina to geta trucking job, invites her to live with her [sic].

And then you might call the very narrow third phase, if you want to break it up, the nightbefore because several of the cases indicate proximity of the sexual relations is important. Those are submissions I leave with you. [75] On appeal, Mr. Graham submits the similarities of the prior sexual encounters between Mr. Graham and K.B. and the incident ofJuly 4th would have supported a defence of honest but mistaken belief in consent.

He argues the evidence would have established a patternwherein he and K.B. would engage in sexual intercourse while intoxicated: “The appellant’s application to cross-examine the complainant inrelation to their prior sexual history was to provide a basis for his honest but mistaken belief in consent, not to suggest that the complainanthad consented because she had consented in the past” (appellant factum at para 65).

As noted by the majority in Goldfinch, “relationshipevidence must be scrutinized with care” to ensure it is used for an acceptable purpose and “mere assurances that the evidence will not beused” for an impermissible purpose are insufficient (at para 46). [76] It is true that, in some cases, evidence of past sexual activity may have relevance to honest but mistaken belief in communicatedconsent (Darrach at para 51). However, an applicant cannot simply state he or she intends to rely on honest but mistaken belief incommunicated consent and thereby meet the requirement under s. 276.1(4)(c).

The proposed evidence must have some potential relevance toa disputed issue before it passes stage one of the application. [77] Mr. Graham’s appellate counsel could not specify to what issue the proposed evidence was relevant within the broad category ofhonest but mistaken belief in consent. Appellate counsel could not identify a specific valid purpose, despite pointed questions from the Courtduring the argument of the appeal asking him to do so.

It was not surprising appellate counsel could not provide a fuller answer because thereis no acceptable use for the evidence of prior sexual activity in this matter. [78] In Darrach, Gonthier, J. described the interplay between evidence of prior sexual history and honest but mistaken belief incommunicated consent: [57] The necessity that the connection be drawn between the evidence and the accused’s defence was affirmed by this Court in R. v. Dickson, (SCC), [1994] 1 S.C.R. 153, in its adoption of the Yukon Territory Court of Appeal’s judgment.

In Dickson, the accusedtendered evidence under s. 276 to support an honest but mistaken belief in consent, but then on the voir dire argued consent on one count anddenied that two other counts of sexual assault had occurred ((1993), (YK CA), 81 C.C.C. (3d) 224 (Y.T.C.A.), at p. 233).The Yukon Territory Court of Appeal properly found that the trial judge erred in admitting the evidence of sexual activity where theevidence on the voir dire did not raise the defence of honest but mistaken belief in consent as the affidavit promised, nor did it raise any otherdefence. … [59]

Section 276 is most often used in attempts to substantiate claims of an honest but mistaken belief in consent. To make out the defence,the accused must show that “he believed that the complainant communicated consent to engage in the sexual activity in question”(Ewanchuk, [ (SCC), [1999] 1 SCR 330] at para. 46 (emphasis in original)). To establish that the complainant’s prior sexualactivity is relevant to his mistaken belief during the alleged assault, the accused must provide some evidence of what he believed at the timeof the alleged assault.

This is necessary for the trial judge to be able to assess the relevance of the evidence in accordance with the statute. Itis an essential part of the legislative scheme which provides a means by which the accused may establish the relevance of the evidence hechooses to put forward. [79] As will be discussed in more detail below, the defence of honest but mistaken belief in communicated consent did not arise on thefacts of this matter. Mr.

Graham’s version of events, as set out in his affidavit for the s. 276 application, deposed to facts that, if true, wouldhave represented actual consent through conduct by K.B., not a mistaken belief in communicated consent. [80] Contrary to Mr. Graham’s assertions on appeal, the only purpose for which the evidence could have been sought to be admittedwas to support an inference that K.B. had consented to sexual activity with him in the past, as part of a pattern of engaging in sexual activitywhen intoxicated, so she was more likely to have consented to the sexual activity on July 4, 2015.

This is not a permissible purpose(Goldfinch at para 60). No other connection can be found in the evidence or submissions. Attempting to cloak the purpose of the evidence inan assertion that it is relevant to an honest but mistaken belief in communicated consent, when honest but mistaken belief in communicatedconsent did not arise on the evidence, does not assist Mr. Graham. An honest but mistaken belief in communicated consent cannot begrounded solely in the fact K.B. consented to sexual activity in the past (Goldfinch at para 62). This is clearly an impermissible purpose, asset out in s. 276(1)(

a) of the Criminal Code. The evidence was not capable of admission because it was not even facially relevant. Theapplication was properly dismissed by the trial judge at stage one. [81] Mr. Graham further submits the trial judge failed to provide sufficient reasons for denying the s. 276 application. I reject thisargument. The reasons provided in the Voir Dire Decision were complete and satisfied the requirements set out in R v Sheppard, 2002 SCC26, [2002] 1 SCR 869, and s. 276.2(3) of the Criminal Code. Overall, the reasons were adequate to provide for meaningful appellate review.Additionally, the reasons sufficiently addressed the requirement of s. 276.2(3)(

b) with regard to the factors from s. 276(3); but, in any event,the requirements of s. 276.2(3) did not have to be met because the application was dismissed under s. 276.1. [82] Mr. Graham identifies the following additional alleged errors by the trial judge in his consideration of the s. 276 application:

(

a) the trial judge erroneously evaluated credibility between Mr. Graham and K.B. when he considered the evidence on the voirdire; (

b) the trial judge reversed the onus requiring Mr. Graham to prove he had an honest but mistaken belief in consent; (

c) the trial judge erroneously determined there was no air of reality to honest but mistaken belief in consent at the voir dire; (

d) the trial judge erroneously determined the evidence of prior sexual activity was not sufficiently specific; and (

e) the trial judge focused solely on the prejudice to the complainant. [83] I do not accept these errors occurred. In any event, none of them could have affected the outcome of the s. 276 applicationbecause the application suffered from the fundamental flaw identified above. The trial judge properly recognized this flaw and dismissed theapplication on that basis. As a result, there is nothing to be gained by analyzing whether any of the other alleged errors occurred because theapplication was dismissed on the proper basis at stage one. [84] The trial judge did not err by dismissing Mr.

Graham’s application to adduce evidence of prior sexual activity. This ground ofappeal cannot succeed. [85] Returning to the allegation of ineffective counsel with regard to the s. 276 application, Mr. Graham asserts trial counsel failed tounderstand the procedural requirements and did not comprehensively argue the application. Mr. Graham further argues trial counsel did notprovide sufficient specificity of the prior sexual activity. These assertions have no merit. Mr.

Graham’s evidence was presented through acombination of affidavit evidence and viva voce testimony in a process that engaged both stages of s. 276. Mr. Graham’s affidavit filed onappeal does not contain any evidence of further specificity – or any other evidence at all – that he asserts should have been provided to thetrial judge for the s. 276 application so the fresh evidence application is not relevant to this allegation. In any event, the application did notfail because of a lack of specificity or because of the process utilized.

It failed, as noted above, because the evidence was not capable ofadmission given that it failed the first stage of the analysis. [86] At the argument of the appeal, Mr. Graham’s counsel still could not identify a proper purpose for the use of the evidence of priorsexual activity. This confirms that the s. 276 application would have invariably failed. If the application could not have succeeded, regardlessof the performance of counsel, there is no further utility in examining this aspect of the allegation of ineffective assistance of counsel: seeG.D.B. at para 29, and R v Kulasingam, 2019 ABCA 6 at paras 6–8.

There was no miscarriage of justice caused by counsel’s actions inrelation to the s. 276 application. b. Honest but mistaken belief in communicated consent [87] Mr. Graham alleges his trial counsel failed to argue honest but mistaken belief in communicated consent. He also argues the trialjudge erred by failing to consider honest but mistaken belief in communicated consent.

For the same reason as the issue above, the twogrounds of appeal are best considered concurrently. [88] A failure by the trial judge to consider honest but mistaken belief in communicated consent would raise a question of law and isreviewable on a standard of correctness. [89] The Supreme Court recently considered the defence of honest but mistaken belief in consent to describe it as the defence ofhonest but mistaken belief in communicated consent: see Barton (SCC) at paras 86–94.

At paragraph 92, Moldaver, J. described the change asa refinement to the “judicial lexicon” in order to focus all of the judicial participants on the crucial question of communication of consent.This change in terminology does not represent a change in the law (see Barton (SCC) at para 91). [90] In this matter, the trial judge briefly addressed the issue of honest but mistaken belief in communicated consent at paragraphs 50and 68 of the Trial Decision: [50] Therefore, it is more of a he said/she said case than an issue of honest but mistaken belief (I only mention this because it appears to havebeen raised in a fashion by defence counsel).

It is not enough, however, when faced with strong evidence of a complainant for an accused tosimply take the witness stand and provide testimony that denies any wrongdoing and describes a totally different event involving consensualsex. If that was the case, then it would be exceedingly difficult for the Crown to ever obtain a conviction in a sexual assault case. … [68] … I do not find that he had an honest belief that she consented to the force that was being applied and he would have known that she didnot and could not have consented. [91] Mr.

Graham is correct in his assertion that the learned trial rejected honest but mistaken belief in communicated consent without alengthy analysis of the issue. However, based on the evidence in this matter, the trial judge was entitled to do so. [92] An assertion of honest but mistaken belief in communicated consent represents a denial of the mens rea of sexual assault: R vEwanchuk, (SCC), [1999] 1 SCR 330 at para 44 [Ewanchuk].

An accused may raise honest but mistaken belief incommunicated consent if he believed that the complainant had communicated by words or conduct her consent to engage in the sexualactivity, but was honestly mistaken in that belief.

Sections 273.1(2) and 273.2 of the Criminal Code limit the circumstances where anaccused may rely on such an assertion. [93] In determining the applicability of honest but mistaken belief in communicated consent, a trial judge must first determine if suchan assertion has an air of reality: Ewanchuk at para 64, R v Cinous, 2002 SCC 29 at paras 49–50, [2002] 2 SCR 3, and R v Knox, 2017 SKCA8, at para 72, 36 CR (7th) 89 [Knox]. The mistaken belief must be a mistake of fact not a mistaken belief in the applicable law: R v J.A., 2011SCC 28 at para 48, [2011] 2 SCR 440.

Establishing an air of reality requires a basis for the alleged factual belief to be found in the evidenceof the words of the parties, their conduct or the surrounding circumstances: R v Noftall, 2018 ONCA 538 at para 8. Two diametricallyopposed versions of events – where the accused asserts facts demonstrating there was actual consent and the complainant testifies to facts

demonstrating there was not – cannot generally be cobbled together to support an assertion of an honest but mistaken belief in communicatedconsent.

In such a case, the issues are credibility and reliability, not an honest but mistaken belief in communicated consent (Knox atparas 70–79 and R v Thompson, 2017 SKCA 33 at para 43). [94] This is not to say that, in appropriate cases, an accused cannot put forth the position that there was actual consent and, in thealternative, he or she had an honest but mistaken belief in communicated consent: R v Park, (SCC), [1995] 2 SCR 836 atpara 17 [Park], and R v M.O., 2000 SCC 49, [2000] 2 SCR 594 (reversing (ON CA), 1999, 138 CCC (3d) 476 (Ont CA)).However, if actual consent is rejected by the trial judge, there must be an air of reality to the assertion of honest but mistaken belief incommunicated consent before it can be considered by the trier of fact, as explained in Park: [25] … Thus, the question is whether, in the absence of other evidence lending an air of reality to the defence of honest mistake, a reasonablejury could cobble together some of the complainant’s evidence and some of the accused’s evidence to produce a sufficient basis for such adefence.

Would the acceptance of one version necessarily involve the rejection of the other? Put another way, is it realistically possible for aproperly instructed jury, acting judiciously, to splice some of each person’s evidence with respect to the encounter, and settle upon areasonably coherent set of facts, supported by the evidence, that is capable of sustaining the defence of mistaken belief in consent?

If thestories cannot realistically be spliced in such a manner, then the issue really is purely one of credibility – of consent or no consent – and thedefence of mistaken belief in consent should not be put to the jury. [95] To determine whether there is an air of reality to the defence of honest but mistaken belief in communicated consent, a trial judgemust consider whether there is any evidence upon which a trier of fact acting judicially could find the following: (

a) that the accused tookreasonable steps to ascertain consent, and

b) that the accused hon

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