R v Dirksen, 2021 SKCA 6

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in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published.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: CACR3267 Citation: R v Dirksen , 2021 SKCA 6 Date: 2021-01-15 Between: Andrew James William Dirksen Appellant And Her Majesty the Queen Respondent Before: Jackson, Leurer and Tholl JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Tholl In concurrence: The Honourable Madam Justice Jackson The Honourable Mr.

Justice Leurer On appeal from: CRM 402 of 2016 and 2019 SKQB 140 , Regina Appeal heard: September 18, 2020 Counsel: Christina Skibinsky for the Appellant Erin Bartsch for the Respondent Tholl J.A. I. Introduction [ 1 ] Andrew Dirksen appeals his convictions for sexual offences on numerous grounds. He argues the trial judge misapplied the burden of proof and conducted a flawed credibility analysis by scrutinizing his testimony in a stricter manner than the Crown witnesses. With regard to his testimony, Mr.

Dirksen also submits the trial judge permitted the Crown to cross-examine him in an abusive manner, improperly strengthened the Crown’s case by intervening with her own questions and misapprehended his evidence. Additionally, he contends the trial judge erred by failing to declare a mistrial post-conviction as a result of erroneously refusing to admit fresh evidence of his psychiatric condition. Further, Mr. Dirksen submits the trial judge erred by permitting the Crown to introduce bad character evidence and then convicting him on that evidence on the basis that this non-criminal behaviour was criminal conduct.

Lastly, he argues the trial judge permitted the Crown to lead evidence of past sexual activity of the complainants without complying with s. 276 of the Criminal Code . [ 2 ] In my view, the trial judge did not commit any of the errors alleged by Mr. Dirksen. For the reasons that follow, the appeal is dismissed. II. Background [ 3 ] Mr. Dirksen was convicted for five sexual offences in relation to L.B. and A.H.D. Mr. Dirksen was 24 years old at the time of the events that resulted in the criminal charges. L.B. was 14 years old and lived with her mother, uncle and siblings. L.B.’s uncle was a close friend of Mr.

Dirksen, so he spent a great deal of time at L.B.’s home. A.H.D. was L.B’s friend and was 13 years old. The events that were described in the witnesses’ testimony occurred over a period of several days in June of 2015. [ 4 ] After spending the day at Regina Beach with a group of people, Mr. Dirksen drove L.B. and her 13-year-old friend, H.H., home. During the drive, according to her testimony, L.B. lifted her shirt and flashed her breasts at a car on the highway. L.B. testified she did this because Mr. Dirksen’s repeatedly requested that she do so and promised her money or cigarettes if she did it.

In his testimony, Mr. Dirksen described the incident as L.B. pressing her buttocks up against the window and mooning another car. He stated L.B. had done so of her own accord – without encouragement or request from him – after he commented that it would be funny if someone in another car mooned them. Mr. Dirksen testified that he rebuked L.B. for doing so and told her to sit back down and put her seatbelt on. [ 5 ] Later that same day, according to L.B.’s testimony, Mr. Dirksen texted her and offered her money to send him nude photos on Snapchat. She refused to do so. Mr.

Dirksen denied asking L.B. to send him nude photos. [ 6 ] On another evening shortly thereafter, Mr. Dirksen was alone in his home with L.B., A.H.D. and H.H. The three young women were drinking Mr. Dirksen’s alcohol, although the amount they each drank and whether they had Mr. Dirksen’s consent to do so was not consistent in the evidence. At one point, all four were in Mr. Dirksen’s bedroom. L.B. testified Mr. Dirksen carried her and A.H.D. out into the hallway several times and, during one of those times, aggressively kissed L.B. without her permission. A.H.D. testified that she and Mr.

Dirksen were play wrestling during this time and he repeatedly touched her breasts, buttocks and vagina over her

clothes and continued to try to undo her bra even after she told him to stop. [7] At some point during the same evening, A.D.H. threw up. She testified Mr. Dirksen told her not to throw up on herself or hewould have to strip her and bathe her. He then followed her to the couch where he asked to see her breasts, stating he had seen L.B.’sbreasts and wanted to see “whose is better”. A.D.H. lifted her shirt and showed Mr. Dirksen her breasts. A.D.H. testified that she laterpoured salt down Mr. Dirksen’s pants to stop him from trying to pull down L.B.’s pants.

Later he poured salt down A.D.H’s shirt and toldher he could help her get it out of her bra. [8] While Mr. Dirksen agreed the young women were at his home on the day in question, and that they were drinking, he testifiedthey were drinking without his knowledge or permission while he was outside working on his truck. He agreed that A.D.H. had vomited athis home, that the young women were in his bedroom with him at one point and that there was a “salt fight”. Mr.

Dirksen also agreed thatthere was some “horseplay” or play fighting between him and A.D.H. that day, but denied touching her inappropriately during thewrestling. He denied the rest of the material events of the evening that were described by the young women. [9] Either that same night or the next day, Mr. Dirksen gave L.B. and A.D.H. a ride home in his truck. L.B. testified that, afterdropping A.D.H. off at her own home, he stopped in a school parking lot. There Mr. Dirksen exposed his erect penis to her, masturbatedhimself and asked her what she thought of his penis.

She pretended to answer a phone call and told him that her mother wanted her home.L.B. testified Mr. Dirksen put his hands inside her shirt and touched her breasts on the drive home. She further stated Mr. Dirksen huggedher outside of the truck when they got to her residence and tried to put his hands down her shorts. Mr. Dirksen denied parking, exposinghis penis, touching L.B.’s breasts or attempting to put his hands down her shorts.

He agreed he gave L.B. a ride home and hugged heroutside of the truck but testified she tried to kiss him and he pushed her back and said “No”. [10] The next evening, L.B. and H.H. were in the basement of L.B.’s home, when Mr. Dirksen went downstairs. L.B. testified shewas drawing on her own arm with a Sharpie marker, which Mr. Dirksen took away from her. She testified Mr. Dirksen then sat on top ofher legs, pulled down her shirt and bathing suit and wrote and drew on her breasts with the marker. L.B.’s mother, who later saw it,testified the markings went from her collarbone down to at least one nipple.

After L.B. told her parents about the writing on her breasts,one or both of her parents confronted Mr. Dirksen and he left the home. In his testimony, Mr. Dirksen stated he had driven L.B. and H.H.home from a party that evening and the two young women, who were drunk, went straight to the basement. He testified he wentdownstairs a bit later to ask the young women how they were doing and noticed L.B. was drawing on her own arm and leg with a marker.Mr. Dirksen made small talk with them for a few minutes and went back upstairs.

He denied writing on L.B. or ever having possession ofthe marker. [11] The events described above were reported to the police shortly thereafter and Mr. Dirksen was charged with five offences, eachof which was alleged to have occurred at or near Regina, between June 11, 2015, and June 21, 2015: (

a) count 1 – sexual assault on L.B., contrary to s. 271 of the Criminal Code; (

b) count 2 – sexual assault on A.H.D., contrary to s. 271 of the Criminal Code; (

c) count 3 – he did, for a sexual purpose, touch directly or indirectly a part of the body of L.B., a person under the age of 16,contrary to s. 151 of the Criminal Code; (

d) count 4 – he did, for a sexual purpose, touch directly or indirectly a part of the body of A.H.D., a person under the age of 16,contrary to s. 151 of the Criminal Code; and (

e) count 5 – he did, for a sexual purpose, expose his genital organs to L.B., a person under the age of 16 years, contrary tos. 173(2) of the Criminal Code. III. Proceedings in the Court of Queen’s Bench [12] Mr. Dirksen pleaded not guilty to the offences and a trial commenced on June 25, 2018. The Crown witnesses consisted ofL.B., H.H., A.H.D. and L.B.’s mother. Mr. Dirksen testified on his own behalf and called no additional witnesses. The only exhibit filedconsisted of a June of 2015 calendar. [13] On August 8, 2018, the trial judge delivered an oral decision.

She extensively reviewed the evidence of the five witnesses andthen turned to her analysis. She applied the principles from R v W.D., (SCC), [1991] 1 SCR 742 [W.D.], and determinedshe did not believe Mr. Dirksen’s evidence. The trial judge found the Crown witnesses to be credible and accepted their testimony. Afternoting she had considered the evidence as a whole, the trial judge convicted Mr. Dirksen on all five counts. [14] After the conviction decision was rendered, Mr. Dirksen asked for, and received, a lengthy adjournment to November 23, 2018,for sentencing.

On that date, he was unavailable, having been admitted to the hospital, and the matter was further adjourned. Mr. Dirksensubsequently dismissed his counsel and retained his current counsel. In due course, Mr. Dirksen filed an application seeking to introducefresh evidence and have a mistrial declared. The evidence sought to establish that Mr. Dirksen has attention deficit hyperactivity disorder[ADHD], that this previously undiagnosed and unmedicated condition had an effect on his testimony and, consequently, affected the trialjudge’s assessment of his credibility.

He also sought a mistrial in relation to the victim impact statements, but that is not at issue on thisappeal. On May 24, 2019, the trial judge rendered her decision dismissing Mr. Dirksen’s application for a mistrial: R v Dirksen, 2019SKQB 140 [Dirksen]. [15] Counts 1 and 2 were judicially stayed through the operation of the principles from R v Kienapple, (SCC),[1975] 1 SCR 729 [Kienapple]. Mr. Dirksen was sentenced for counts 3, 4 and 5. The sentence was not appealed. IV. Issues

[ 16 ] The issues pursued in this appeal are logically arranged as follows: (

a) Did the trial judge err by not admitting fresh evidence and declaring a mistrial? (

b) Did the trial judge err by not intervening in the Crown prosecutor’s cross-examination of Mr. Dirksen? (

c) Did the trial judge err by asking Mr. Dirksen questions at the conclusion of his testimony? (

d) Did the trial judge err by admitting evidence of past sexual activity of one of the complainants, without complying with s. 276 of the Criminal Code ? (

e) Did the trial judge err by admitting and relying on bad character evidence? (

f) Did the trial judge err by scrutinizing Mr. Dirksen’s testimony more strictly than the testimony of the Crown witnesses? (

g) Did the trial judge err by misapprehending the evidence? (

h) Did the trial judge err by misapplying the burden of proof? V. Analysis A. Fresh evidence and mistrial [ 17 ] After being convicted, but before being sentenced, Mr. Dirksen changed counsel and sought to introduce fresh evidence and have a mistrial declared. In

summary, he argued that his undiagnosed and unmedicated ADHD had an affect on his ability to reason, think, function and process information during his testimony; and, because the trial judge did not know of this issue, her assessment of his credibility was compromised. The fresh evidence consisted of the following: (

a) a psychiatric report from Dr. Mohamed Eisa, along with his curriculum vitae and an acknowledgment of his duty as an expert witness under Rule 5-37 of The Queen’s Bench Rules ; (

b) a psychological testing report from Joan Helmsing, along with her curriculum vitae and an acknowledgment of her duty as an expert witness under Rule 5-37 of The Queen’s Bench Rules ; (

c) an affidavit from Mr. Dirksen’s trial counsel; (

d) an affidavit from a long-time acquaintance of Mr. Dirksen, Gordon Hamilton; (

e) an affidavit from Mr. Dirksen’s mother, Lorrie Dirksen; and (

f) an affidavit from Mr. Dirksen. [ 18 ] The trial judge dismissed the application for a mistrial. In doing so, she stated the following in relation to the ADHD portion of the application ( Dirksen ): [20] The second ground put forward for a mistrial is Mr. Dirksen’s undiagnosed and untreated ADHD. Mr. Dirksen asserts the ADHD had an impact on his ability to testify coherently. [21] Registered psychologist Joan Helmsing provided a report discussing the effect of ADHD on Mr. Dirksen’s behaviour. Of concern, she noted: ... Prudence scales appear severely deficit, suggesting [Mr.

Dirksen] has difficulty stopping to think and not automatically reacting. ... Attention, Vigilance scales appear severely deficit, suggesting [Mr. Dirksen] has difficulty staying on task and being alert. ... [Helmsing Behavioural Assessment Report dated March 28, 2019, at p. 4] [22] The report will be helpful for Mr. Dirksen personally, but it does not suggest that Mr. Dirksen was unable to make full answer and defence to the charges against him. Contrary to the finding of Trotter J. in R v Drysdale , 2011 ONSC 5451 , 275 CCC (3d) 219, I do not find the new evidence of Mr.

Dirksen’s ADHD could have affected the result at trial. In other words, the new information does not cause me to look differently at his testimony. [23] It is common for trial courts to receive evidence from persons suffering from a variety of mental illnesses and disorders. In a report filed by Dr. M.E.A. Eisa, senior consultant psychiatrist with Mental Health and Addiction Services, Regina Qu’Appelle Health Region, he states, “It is well known that people with ADHD are more likely to end up in drug misuse and are highly represented in the prison system”. [24] Mr.

Dirksen was not found guilty because he could not express himself clearly. He was found guilty because I did not believe his evidence. In other words, I found he concocted his evidence. However, as I explained in my trial decision (August 8, 2018, unreported): It is not enough for me to disbelieve the accused. I must also consider whether his evidence raises a reasonable doubt and I must consider whether the evidence I do believe satisfies me, beyond a reasonable doubt, that the Crown has proved the essential elements of each offence.

[25] I found Mr. Dirksen guilty because, on the whole of the evidence, I was convinced beyond a reasonable doubt of his guilt. Theevidence of his health concerns would not have affected that determination. [26] The application for a mistrial is denied. [19] On appeal, Mr. Dirksen seeks to supplement the fresh evidence rejected at trial with additional fresh evidence: (

a) an additional affidavit from Ms. Helmsing, sworn June 20, 2019, attaching her original psychological testing report, twoadditional psychological testing reports, her curriculum vitae, an acknowledgment of her duty as an expert witness under Rule 5-37 of TheQueen’s Bench Rules and an email exchange between Ms. Helmsing and Mr. Dirksen’s counsel; and (

b) an additional affidavit from Ms. Helmsing, sworn September 6, 2020, attaching pages 59–65 of the Diagnostic and StatisticalManual of Mental Disorders, DSM-5. [20] The parties agree that the trial judge was not functus officio and retained jurisdiction to declare a mistrial after conviction butprior to sentencing: R v Lessard (1976), (ON CA), 30 CCC (2d) 70 (Ont CA); R v Mysko (1980), (SK CA), 2 Sask R 342 (CA); and R v Arabia, 2008 ONCA 565 at paras 49–51, 235 CCC (3d) 354 [Arabia]. The principles that apply tomistrial applications are also not contested.

When analyzing such an application, a trial judge must determine if an accused person’sability to make full answer and defence has been impaired and assess whether there is a real danger that trial fairness has beencompromised: R v Khan, 2001 SCC 86 at para 79, [2001] 3 SCR 823 [Khan], and R v G.C., 2018 ONCA 392 at para 3 [G.C.].

A mistrialshould only be granted in the clearest of cases where there has been a “fatal wounding of the trial process” (R v Lawson (1991), (BC CA), 1 BCAC 204 (vLex) at para 7) – that cannot be remedied by a lesser remedy – and it is required to prevent amiscarriage of justice: R v Burke, 2002 SCC 55 at para 75, [2002] 2 SCR 857; Arabia at para 52; and R v Dueck, 2011 SKCA 45 atpara 30, 371 Sask R 134 [Dueck]. [21] The criteria for the admission of fresh evidence, both at trial and on appeal, was recently summarized by Jackson J.A. in R vParfitt, 2019 SKCA 55, 378 CCC (3d) 490: [25] In Palmer v The Queen, (SCC), [1980] 1 SCR 759 [Palmer], the Supreme Court set out the principles governing theadmission of fresh evidence on an appeal from a conviction.

After emphasizing that the overriding consideration must be “the interests ofjustice”, in accordance with the wording of what is now s. 683 of the Criminal Code, McIntyre J. set out the applicable principles (at 775):

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases (McMartin v. The Queen [ (SCC), [1964] SCR484]).

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affectedthe result. [22] A decision to reopen a trial to admit fresh evidence and to declare a mistrial are discretionary determinations that attract adeferential standard of review: Khan at para 79; R v Lamirande, 2002 MBCA 41 at paras 126, 129–130, [2002] 9 WWR 17 (leave toappeal to SCC refused, [2003] 1 SCR xii); R v Chiasson, 2009 ONCA 789 at para 14, 258 OAC 50; G.C. at para 3; R v Grant, 2009MBCA 9 at para 69, [2009] 5 WWR 283 (leave to appeal to SCC refused, ); and Dueck at para 30. [23] Mr.

Dirksen argues the trial judge presumably found the fresh evidence met the Palmer test at trial and admitted it. He submitsshe then misunderstood the impact of the medical evidence and points to the trial judge not mentioning various factors from the evidenceas indicative that she did not consider those factors. Mr. Dirksen contends the trial judge “missed the point” about the significance of hisADHD diagnosis, used the evidence to bolster her belief in his guilt and, alternatively, that the trial judge believed she knew if a witnesshad a mental health issue so the evidence was not fresh to her. Contrary to Mr.

Dirksen’s assertions, the Crown submits the fresh evidencewas not admitted by the trial judge. It argues the evidence was not fresh because Mr. Dirksen was diagnosed with ADHD as a child andwas aware of the issues that he now subsequently said should have resulted in a mistrial. Further, the Crown argues that the evidence wasnot admitted by the trial judge because it would not have affected the verdict and contends the trial judge explicitly held that it would nothave changed her credibility assessment. [24] From a review of the record, it is clear that the trial judge did not admit the fresh evidence.

This is set out in Dirksen where shestates, “I do not find the new evidence of Mr. Dirksen’s ADHD could have affected the result at trial” (at para 22). As such, she explicitlyfound that the last requirement of the Palmer test was not met. [25] The fresh evidence also could have been rejected on the basis that it did not meet the first of the Palmer criteria. Mr. Dirksenwas diagnosed with ADHD as a child and medicated for a year and a half before he stopped due to side effects. While Mr.

Dirksen mayhave been told that he had a learning disability and not ADHD, he knew that he was easily distracted and inattentive as a child and hasbeen unable to keep steady employment as an adult. It is difficult to see how the fresh evidence could not have been adduced at trial, giventhat he had been previously diagnosed with ADHD and was aware of his issues. [26] It is my view that, if the trial judge had admitted the fresh evidence, the fact that the current diagnosis had not yet been madeand his condition was untreated at the point Mr.

Dirksen testified would not have amounted to a “fatal wounding of the trial process” suchas to warrant the granting of a mistrial. In this case, we have the benefit of the trial judge having considered the proposed evidence and itspotential effect on her deliberations. The trial judge was in the best position to consider the evidence in the context of her firsthandobservations of Mr. Dirksen’s testimony and her assessment of his credibility. She considered the fresh evidence and determined it wouldnot have affected the outcome.

Given the deferential standard of review, there is no room to interfere with that determination. With therejection of the evidence, there was no basis for a mistrial. The trial judge implicitly determined his ability to make full answer and

defence had not been impaired. In my opinion, there is no real danger that trial fairness has been compromised. [27] The additional fresh evidence sought to be introduced on appeal suffers from the same flaws as the original fresh evidence and,likewise, cannot be admitted in this Court. [28] There is no merit in this ground of appeal. B. The Crown’s cross-examination of Mr. Dirksen [29] Mr. Dirksen submits his cross-examination by the Crown prosecutor was abusive, aggressive, repetitive, utilized compoundquestions and contained impermissible questions.

In addition, he says the Crown prosecutor cut him off multiple times when he tried toanswer, swore at him, called him stupid and used sexual innuendo to describe innocuous situations. He characterizes the cross-examination as a “verbal assault” and argues the trial judge should have intervened to rein in the Crown prosecutor. The Crown submitsthe cross-examination has been grossly mischaracterized by Mr. Dirksen, was completely proper and did not require any intervention bythe trial judge. It concedes one question was impermissible but argues Mr. Dirksen was not required to answer the question and it playedno

part in the trial judge’s decision. [30] A trial judge has a duty to prevent abusive cross-examination. This duty was described by McIntyre J. in R v Fanjoy, (SCC), [1985] 2 SCR 233 [Fanjoy]: [9] Was the failure of the trial judge to restrain the abusive cross-examination an error of law? Of course, a legal element was involved inthe decision which faced the trial judge. The question of admissibility of evidence is a question of law. Crown counsel has a right in law tocross-examine the accused and, accordingly, to deny that right or unduly limit it raises considerations of law.

There are, however, limits tothe extent of the cross-examination and the manner in which it may be conducted, and there is always a discretion in the trial judge and aduty to confine the cross-examination within proper limits. There is, of course, no doubt that in cross-examination in criminal cases,particularly where questions of credibility of witnesses are in issue, a wide latitude is accorded to counsel and too fine a line should not bedrawn to confine or limit a detailed and searching inquiry into the matters raised by the evidence given by the accused and otherwitnesses.

The discretion to intervene in a cross-examination must, of course, be exercised judicially. Its exercise does not rest on legalconsiderations alone, but will depend as well on the facts and circumstances in each case, and will not be determined by the simpleapplication of a fixed rule of law. The decision to exercise the discretion to intervene in cross-examination, or to refrain from intervention,is one involving considerations of both law and fact and cannot be said to be a question of law alone.

Each case will depend on its owncircumstances, and no doubt there will frequently be difficulty in deciding from case to case whether the point has arrived in across-examination where the trial judge should intervene. [31] In R v Trotchie, 2019 SKCA 43, [2019] 10 WWR. 187, Ottenbreit J.A. set out the principles applicable to an appeal on thebasis of an alleged improper cross-examination: [73] It is also necessary to review the law governing improper cross-examination when determining whether the curative proviso appliesin this case.

This law has recently been summarized in R v Mohamad, 2018 ONCA 966, 369 CCC (3d) 211 (Ont CA): [176] Several basic principles impose limitations on the scope of cross-examination of witnesses in a criminal trial. [177] First, the law imposes well-established limits on the scope of cross-examination in which Crown counsel is permitted to engage.Some apply to all witnesses. Others apply only where the witness is an accused: R. v.

R.(A.J.) (1994), (ON CA), 20O.R. (3d) 405, at p. 412. [178] Second, Crown counsel is entitled and sometimes expected to conduct a vigorous cross-examination of an accused: R.(A.J.), atpara. 22. [179] Third, although isolated transgressions of the rules governing cross-examination of an accused by Crown counsel may be of littleconsequence, repeated improprieties are different.

Serial infractions may become abusive and contribute to the danger of a miscarriage ofjustice: R.(A.J.), at para. 23. [180] Fourth, to determine on which side of the line an allegedly improper cross-examination falls, a reviewing court should keep in mindthat every improper cross-examination does not require appellate reversal. Each case is different. A function of its own circumstances.And so it is that each case demands a case-specific analysis.

What may render one trial unfair may not have the same effect in anothercase. [181] The case-specific analysis requires consideration of the alleged improprieties in the context of the entire cross-examination, indeedin the environment of the entire trial. We should consider whether the allegedly improper cross-examination resulted in a jury hearing orseeing evidence that they should not have heard or seen, for example evidence of extrinsic misconduct.

We should consider whether theimpugned cross-examination was brief or protracted and whether it attracted objection from defence counsel or remained unchallenged.Any ameliorating steps taken by the trial judge, for example curative instructions specific to the impropriety claimed or those of a moregeneral nature, are also important antidotes to any claim of prejudice: R. v. E. (F.E.), 2011 ONCA 783, 108 O.R. (3d) 337, at paras. 76–78; R. v.

Daly (1992), 57 O.A.C. 70 (C.A.). [74] In R v Bear, 2008 SKCA 172, 320 Sask R 12, this Court commented on what is necessary for an appeal to succeed on the groundsthere was improper cross-examination: [26] Nonetheless, for an appeal to succeed on this ground, this Court must conclude that the appellant was, in the context, prejudiced bythe questions. See Boyd, [2005 MBCA 80]. We note that this was not a jury trial, unlike most of the cases cited above.

Nor did the trialjudge himself appear to place any weight on these questions or in any way shift the onus of proof to the accused, as in Vandenberghe,[(1995), (ON CA), 96 CCC (3d) 371]. Finally, in the context of the entire cross-examination, these questions and theappellant’s responses were, in my view, relatively innocuous, and did not play a major role in the evidence of the appellant. See R. v. E.

(T.), 2007 ONCA 891. [32] While each of the allegations made by Mr. Dirksen will be considered individually below, it is the cumulative effect of thealleged transgressions that matter, as Doherty J.A. commented in R v A.J.R. (1994), (ON CA), 74 OAC 363 (CA)[A.J.R.]: [23] There are, however, well-established limits on cross-examination. Some apply to all witnesses, others only to the accused. Isolatedtransgressions of those limits may be of little consequence on appeal. Repeated improprieties during the cross-examination of an accusedare, however, a very different matter.

As the improprieties mount, the cross-examination may cross over the line from the aggressive tothe abusive. When that line is crossed, the danger of a miscarriage of justice is very real. If improper cross-examination of an accusedprejudices that accused in his defence or is so improper as to bring the administration of justice into disrepute, an appellate court mustintervene: R. v. Fanjoy , (SCC), [1985] 2 S.C.R. 233; 62 N.R. 253; 11 O.A.C. 381; 21 C.C.C.(3d) 312; R. v. Ruptash(1982), 1982 ABCA 165 , 36 A.R. 346; 68 C.C.C.(2d) 182 (C.A.), at p. 189. [33] The examination-in-chief of Mr.

Dirksen consumed a little over 20 minutes and covers 16 pages of the transcript. The Crown’scross-examination lasted slightly over an hour and covers 44 pages of the trial transcript. Mr. Dirksen complains that the cross-examination was needlessly three times as long as the examination-in-chief. Mr. Dirksen offered no authority for the proposition that therelative length of cross-examination as compared to an examination-in-chief itself provides a yardstick or standard against which todetermine its character as abusive.

I also see no basis for the suggestion that it does so, particularly when the total time the witness was onthe stand was less than one and one half hours, which included a break after the examination-in-chief and another one towards the end ofthe cross-examination. [34] Turning to the next complaint with regard to the cross-examination, Mr. Dirksen provides 16 examples where he alleges theCrown asked compound questions. For context, I will set out the first, middle and last examples cited by Mr. Dirksen: Q Did you ever hang out with her by herself? Did you ever go for a coffee?

Did you ever talk to her --A Yah.Q -- with the one on one situation? So what did you do together if you went out by -- you know, by yourself withher?A Grab a coffee, and then usually just head back. … Q You -- you think they forgot something? Why did you invite them back? You’re mad at them. They’ve beentwice now, according to your testimony, they’ve been dipping into the booze. You think it’s about time they gohome. Now -- then you give them the frozen dinner. Then you say she needs her inhaler. So she leaves.

What didthe other girls do when [L.B.] left to get her inhaler?A They went with her. … Q And what happens downstairs? Do they -- were they mad -- did you tell them you told her parents?A She heard me tell her mom. [35] I have reviewed all of the alleged compound questions. In my view, there is simply nothing in the questions that raises aconcern about impropriety. Most of the questions contain context information or ask the same question in a similar manner. Others aresimply compound questions that elicit only one answer. There is no indication that Mr.

Dirksen was confused by the questions he wasasked, or that he suffered any prejudice by reason of how these questions were put to him. [36] Mr. Dirksen expresses concern that he was frequently cut-off by the Crown prosecutor and not given an opportunity to answermany questions. He provides 30 examples of these alleged transgressions.

Again, for context, I will provide the first, middle and lastexample: Q Because you heard her comment, I believe it was – [A.H.D.] thought it was weird that when you went over, shesaid you seemed to spend more time with [L.B.] than with [N.J.].A No, I spent the majority --Q So what -- what do you think of that comment?A -- of my -- I spent --Q Pardon?A -- the majority of my time with [N.J.]. The girls would come up and join us, whether we were playing videogames or what have you. … Q Were you uncomfortable doing that?A No.Q Given her age difference?A It was nothing --Q Well, she’s 14, I believe, at the time.

You’re 24?A Yes, but there was --Q That’s ten years apart.A -- nothing -- there was nothing inappropriate about a hug above the shoulders. …

Q Okay. So what happens then? You’re in -- you’re in the living room with [N.J.].A Yes. [L.B.’s father] --Q And what happens?A I’m in the living room with [N.J.]. And I heard [L.B.’s mother] call my name, so I went into the kitchen. [L.B.’sfather] came upstairs. And then he asked me -- he says, [L.B.] says that you wrote on her chest, and you tried tokiss her. [37] It is difficult to even characterize most of the examples given by Mr. Dirksen as constituting interruptions by the Crownprosecutor. Many of them result from Mr. Dirksen interrupting the Crown prosecutor.

Others consist of a single word or phrase said in themidst of an answer. Most importantly, none of them contain an instance where Mr. Dirksen was prevented from providing his answer to aquestion. [38] Mr. Dirksen alleges the Crown prosecutor swore at him during the cross-examination. He relies on the following excerpt fromthe transcripts for this assertion: Q She wasn’t pissed off at you for telling her mom?A She didn’t seem too -- didn’t seem to be. She was drawing on herself with -- with a marker.

She was drawing onher leg, and there was some drawing on her arm. [39] Characterizing this question as swearing at Mr. Dirksen is not correct. While the Crown prosecutor used a vernacular phrase toask if one of the complainants was angry at him, this can hardly be equated with swearing at the witness. [40] The Crown asked two questions that Mr. Dirksen argues were improper. The first question is conceded by the Crown to beimproper: Q But she clearly said that -- [A.H.D.], [L.B.] -- [A.H.D.] thought it was weird to her that you spent so much timewith them --A I didn’t --Q -- as opposed to [N.J.].

So did you spend a lot of time with them?A No.Q Why do you think she’d say that? Was she -- so you spent no time with them alone, on occasion just when youwent over to the house?A Yes. (Emphasis added) [41] It is generally prohibited to ask an accused why a witness would lie.

There is no onus on the accused to explain the allegationsagainst him or her or to argue his or her case during testimony: R v W.S. (1994), (ON CA), 70 OAC 370 (CA) atpara 26 (leave to appeal to SCC refused, [1994] 2 SCR x); R v Bear, 2008 SKCA 172 at para 24, 320 Sask R 12 (leave to appeal to SCCrefused, ); and R v Dhaliwal, 2016 ONCA 652 at paras 11–12, 341 CCC (3d) 1. The Crown concedes asking “Why doyou think she would say that?” was an improper question. However, that does not end the analysis.

As seen in the question and answer, theCrown prosecutor immediately, and of his own accord, abandoned that question and moved to a permissible question. Mr. Dirksen onlyanswered the permissible question and did not answer the other one. Additionally, the trial judge made no mention of this unansweredquestion in her decision. As such, there was no prejudice from this brief and retracted impropriety. [42] A second example of what is said by Mr.

Dirksen to be an impermissible question is contained in the following exchangeduring the cross-examination: Q But in spite of all the stuff you had seen and the concern you’re saying you felt, you didn’t feel it necessary to goin and tell [L.B.’s] parents she had been drinking, she had been doing drugs?

Just never thought of that?A I thought about it, but the reason I did not express my concerns to [L.B.’s mother] is I believed that it would lookbadly on me, and I would be the one in trouble, because they were at my house, under my supervision, for lackof a better term.Q So the night of the magic marker incident, you had no problem, though, reporting that --A No. I had no problem telling her.Q -- [L.B.] and [H.H.] had been drinking?

Mm?A No, I had no problem telling her that.Q Had you ever done that before?A Told [L.B.’s mother] that [L.B.] had been drinking?Q Had you ever, say, ratted out[L.B.] before to her parents about drinking or doing things like that?A Drinking, no, because I didn’t know any other time that she had consumed alcohol.Q Okay. Just at your house?A Just that one time, yes.Q So why did you decide the night of the Sharpie incident to tell her parents when you didn’t say anything thenight before? Was it just a question of one was a weeknight and the other one was a Friday night or --A No.

I decided to tell [L.B.’s mother] because I felt she deserved to know. She was at this party. She wasconsuming alcohol. I had nothing to do with it.Q Well, I’d suggest you had a lot had to do with your house. It wasn’t just -- well, I mean -- so they snuck into youralcohol. What’s wrong with -- how would -- why would they blame you if you told the parents that? Why do youthink that would be not -- that doesn’t sound too bizarre to me. If you’re out working on your truck, they sneakinto your booze, take them home, say, your kids have been in the liquor cabinet. You never thought of doing thatthat day?

A I just figured it would come back on me, regardless. I didn’t think it looked good, and it would come back on me. I would be the one in trouble. Q But why would it come back on you, though, in those circumstances, you know? A Because I was supposed to be the one that was looking after them. They were in the presence of me, so ... Q But you were supposed to be looking after them? So what do you mean by that? Where -- is that how you took your role that day? A No.

When another person is with you, the person’s parents or -- or someone who looks over them or watches over them generally assumes that if they’re with you, everything is going to be okay. Everything was -- Q So you say you were really concerned about [L.B.]. So why wouldn’t you tell her parents? I mean, that’s serious. They’re only 13 or 14 at the time. She had booze at your house, so you have -- you just don’t say anything? You don’t say anything about it the Friday night, the night of the marking incident, that, by the way, this isn’t the first time this has happened? She snuck into my liquor cabinet?

A I don’t recall if I did or not. (Emphasis added) [ 43 ] In my view, the portion of the cross-examination that asks, “Why would they blame you if you told the parents that?” does not contain a prohibited question when read in context of the entire exchange. Mr. Dirksen testified he told L.B.’s parents about L.B. drinking on one night but was afraid to tell them about her drinking on another night.

The impugned question is part of a broader exploration of the logic of why he believed he would be in trouble for the one episode that he testified was not his doing but not for another similar episode for which he also claimed he had no responsibility. This question did not stray into the prohibited territory of asking an accused person to explain why another witness would say a certain thing that the accused person says is false. None of the reasons prohibiting such questions were engaged by this portion of the cross-examination. [ 44 ] Mr.

Dirksen also asserts the Crown improperly used sexual innuendo to describe his wrestling with the girls during the following portion of the cross-examination: Q Was she ever involved in a wrestling match with you and [N.J.], the three of you, like a threesome? A The four of them, yes. … Q And who would be the fourth? A [L.B.], myself, [N.J.], and [A.H.D.] would occasionally engage in wrestling, yeah. Q Can you describe how many times that happened, first of all, the four of you would be wrestling? A How many times we would wrestle? Q Yeah. Just the four of you? A Not that often. Q Okay. Maybe one or two?

A Maybe three, maybe four at the most. Q Okay. So when you wrestle with this foursome, what did you do? Did you ever make contact with [L.B.]? A Arms, back, things like that. But that’s about it. … Q So then with respect to [A.H.D.], then, it was always a foursome in wrestling, and that wasn’t very often. So that’s fair to say? A I don’t know why you would use the word “foursome,” but -- Q Well, there’s four people. A Okay. Yes. Then yes. There was usually four, and it was not unusual. Q Pardon me?

A There was generally the four of us, and no, it was not unusual for that to be -- for that to happen. [ 45 ] While the terms “threesome” and “foursome” may, in some contexts, also have a sexual connotation, that is not the case here. Instead, it is clear that the Crown prosecutor was using the term to describe the number of people wrestling. When Mr. Dirksen himself questioned the term, the Crown prosecutor politely and succinctly explained what he meant and the questioning carried on. [ 46 ] Lastly, Mr. Dirksen alleges the Crown prosecutor called him stupid during the cross-examination: Q And what happens?

A I’m in the living room with [N.J.]. And I heard [L.B.’s mother] call my name, so I went into the kitchen. [L.B.’s father] came upstairs. And then he asked me -- he says, [L.B.] says that you wrote on her chest, and you tried to kiss her. Q And you which? A And that I had tried to kiss her. Q Okay. And what did you say? A I said no. I had done neither of those things. She is like family to me. I would never do anything to hurt her. Q Did you suggest it was [H.H.] that did it? A Yes. I said I believe that it was [H.H.] that wrote on her.

Q But you testified earlier that you never saw [H.H.] holding a marker that night? A No. I did not see [H.H.] holding a marker at the time. Q So where did you -- don’t you think it’s kind of the easy out for you to blame [H.H.] when you write on her? A No.

Q I mean, obviously, I would suggest you did this act. Maybe you’re not stupidenough to write your own name. It’s like somebody robbing a bank and giving amessage to the teller with their business card on the back. I’d suggest that waspart of your little plot. You put “[H.H.]” because you knew she’d take the fall?A No.Q No?A No.Q But you will agree you never saw [H.H.] with a marker when you were downthere?A When I was down there for the few minutes, I did not see [H.H.] with a marker,no.MR. JONES: Those are all the questions I have for you, Mr. Dirksen.

Thank youvery much.A Thank you.THE COURT: Re-examination.MR. KRAUSHAAR: No, My Lady. No questions (Emphasis added) [47] The allegation that the Crown prosecutor was calling Mr. Dirksen stupid is a misreading of this portion of the cross-examination. The use of the word was part of a description of Mr. Dirksen’s alleged acts with which the Crown prosecutor was attemptingto have him agree. The connotation of the question was to suggest that Mr. Dirksen was clever enough to sign one of the other girl’snames on L.B.’s breast in order to avoid the blame.

I see nothing untoward in this portion of the questioning. [48] I note that there was not a single objection by Mr. Dirksen’s counsel during the cross-examination. In my read of the transcript,that was the appropriate number of objections, as there was nothing improper to object to except for the singular question asked by theCrown that caused no prejudice and was immediately retracted. [49] Taken together, the alleged transgressions did not render the trial unfair.

While the Crown asked one impermissible questionregarding the veracity of the complainants’ testimony, this had no effect on the cross-examination or the trial. Mr. Dirksen was notprejudiced by this question. Mr. Dirksen’s other allegations are not well-founded. Taken as a whole, the cross-examination was thoroughbut was not abusive or otherwise improper. There is no merit to this ground of appeal. C. Trial judge’s questions of Mr. Dirksen [50] Mr. Dirksen takes issue with questions asked by the trial judge during the trial.

He submits this questioning was improper andthat it impermissibly bolstered the Crown’s case. [51] Trial judges may ask questions of witnesses, including an accused person, in order to clarify their responses, when it appearsthe witness has misunderstood a question from counsel or to ask other necessary questions: R v Brouillard, (SCC), [1985]1 SCR 39.

They must, however, be cautious in exercising this power so that they avoid creating an unfair trial or the appearance of one.The volume and nature of a judge’s questions can lead to the perception that the trial judge has taken a side, interfere with the ability ofcounsel to present their case, impede accused persons in providing their testimony, and, in the case of a jury trial, invite a jury todisbelieve a witness: Brouillard, R v Schmaltz, 2015 ABCA 4, 320 CCC (3d) 159, and R v Murray, 2017 ONCA 393, 347 CCC (3d) 529.On the other hand, focused and restrained questions do not generally create any issues with trial fairness: R v Gahan, 2014 NBCA 18, 311CCC (3d) 83. [52] At the conclusion of his testimony, the following impugned exchange occurred between the trial judge and Mr.

Dirksen, andthen among the trial judge and counsel: Q THE COURT: Thank you. I just have one question --A Certainly, My Lady.Q -- perhaps you can explain. In cross-examination, you said when you came in the second time from working onyour truck --A M-hm.Q -- the girls were not on the main floor. They were upstairs.A Yes.Q Okay. So you recall saying that?A Yes.Q Okay. And the reason that I’m asking you is because you had told your counsel that when you came in thesecond time, the girls were drinking again. You were more agitated. You dumped their drinks again. You wentupstairs.

And you were just sitting there, and then the girls came up. So I’m wondering if you can explain howthose two things work together.A I was mistaken on the first.THE COURT: Okay. Thank you. Any questions arising out of my question?MR. JONES: No, My Lady.THE COURT: Mr. Jones?MR. KRAUSHAAR: No, My Lady.THE COURT: Okay. Thank you. You can have a seat again.A Certainly. [53] This was the only question asked of Mr. Dirksen by the trial judge. Mr.

Dirksen submits that, in this exchange, the trial judgemisquoted the evidence and cross-examined him about facts that were not in evidence and then, in the trial decision, focussed on his

answer in her credibility analysis. Specifically, he submits he “never said anywhere in his evidence that he went up to his room, was just sitting there, and then the girls came up”. Mr. Dirksen points to the following portion of his examination-in-chief as setting out his testimony in this regard: Q Okay. And what happened from there? A [L.B.] said that she was hungry. So she went downstairs and made herself something to eat. Q Okay. Do you know what she made herself? A I believe it was a frozen dinner or something like that. Q Okay. And then what were you doing at that time? A I was just sitting upstairs.

Q Okay. And who was with you? A [A.H.D.] and [H.H.] Q And where were you in the house when this was going on? A I was upstairs in my bedroom. [ 54 ] In response, the Crown submits Mr. Dirksen is mistaken in his characterization of the question asked by the trial judge. It argues she was referencing Mr. Dirksen’s contradictory testimony regarding the alleged confrontation between him and the young women when he discovered they were drinking a second time. His testimony in this regard is as follows: [From Mr. Dirksen’s examination-in-chief] Q Okay. And what happened from there?

A Finished off what I was doing outside, maybe about an hour -- hour or so, cleaned up my tools. Came back inside, and they were drinking again. Q Okay. A I was a little more agitated this time. I said, what the hell are you doing? We already talked about this. I said no drinking. This is my alcohol. This is my house. You’re not allowed to do that. Q Okay. And what did they do? A They didn’t seem to care very much. I took their alcohol, the little bit that they had left, dumped it down the sink, put my stuff back -- I put my stuff in the freezer, and I went upstairs. Q Okay. And what did they do?

A They came upstairs, as well. Q Okay. And what happened from there? A [L.B.] said that she was hungry. So she went downstairs and made herself something to eat. Q Okay. Do you know what she made herself? A I believe it was a frozen dinner or something like that. Q Okay. And then what were you doing at that time? A I was just sitting upstairs. Q Okay. And who was with you? A [A.H.D.] and [H.H.] Q And where were you in the house when this was going on? A I was upstairs in my bedroom. Q Okay. And they were with you in your room? A Yeah [From Mr. Dirksen’s cross-examination] Q Okay.

So how long are you out working on your truck again before you come back in? A I’d say another half an hour, maybe 45 minutes. Q And what do you see when you come back in? A The girls weren’t on the main floor. Q Pardon? A The girls were not on the main floor. Q Okay. And so where were they? A They were upstairs. Q Okay. So then did you go upstairs? A Yes. Q But there was no drinking that time? A Yes, there was. Q I thought you said there weren’t -- there wasn’t any drinking in your room upstairs? Did you say that or am I wrong on that? A I knew they’d been drinking the second time.

There was still -- there was still alcohol and -- and cups downstairs with alcohol in them. They had been drinking before, and they’d been drinking during. Q But how do you know that? A Because -- Q Unless you were there with them, of course. A Because I dumped out the alcohol before I went back outside. And when I came back inside, there was more alcohol in the cups. Q Where did you put the alcohol when you put it away? A I tightened the caps and put it back in my refrigerator.

Q You didn’t think to take it out with you if somebody sneaking into your booze and you leave them -- leave them back -- leave them by themselves and you go back outside, according to you? A I figured I gave them heck. I gave them the benefit of the doubt. They got caught, I gave them heck, that they

Q So you just put the liquor away, and you come back in. They’re up in your bedroom. Where did you see thecups?A On the table in the --Q Of liquor?A In the kitchen.Q And there was -- they didn’t have any cups up in the bedroom with them?A No.Q So when you went up to confront them, did you confront them upstairs, then, again about drinking?A Yes.Q And what did you say to them this time?A I said, I know that you guys have been drinking since I’ve been gone. I said, I poured the alcohol out of the cupsbefore I left, and I come back in, and there’s still alcohol in these cups.

I said, you know, I think -- I think it’stime you guys go home. [55] I observe the trial judge’s questions were brief and addressed only one issue, that being the inconsistency in Mr. Dirksen’stestimony regarding his alleged second confrontation with the young women over their drinking. This testimony revealed a clearcontradiction as to where the three young women were and how Mr. Dirksen reacted to the drinking when he allegedly came back inside asecond time. The trial judge gave Mr. Dirksen an opportunity to explain this inconsistency and he provided his explanation.

In my view,this narrow question was well within the bounds of appropriate questioning of the witness. [56] With regard to Mr. Dirksen’s contention that the trial judge misquoted the evidence and cross-examined him about facts not inevidence, I find that, after examining the above quoted portions of the transcript, the trial judge’s question did not provide a misleadingrecount of his testimony nor engage in an impermissible form of questioning. The trial judge provided the outline of his two contradictoryversions, which permitted Mr. Dirksen to understand her question. Mr.

Dirksen was not confused and promptly answered the question.There is no merit to this ground of appeal. D. Evidence of past sexual conduct [57] Mr. Dirksen asserts the trial judge erred by permitting the Crown’s witnesses to testify about conduct that had a sexual aspectbut was not one of the events that the formed the subject-matter of the charges.

He submits the trial judge should not have permitted L.B.and H.H. to testify about L.B. flashing her breasts on the drive home from Regina Beach in the absence of a Crown application unders. 276 of the Criminal Code. [58] The relevant portions of s. 276 of the Criminal Code in force at the time of the trial are as follows: Evidence of complainant’s sexual activity 276(1) In proceedings in respect of an offence under

section 151, 152, 153, 153.1, 155 or 159, 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.

(2) In proceedings in respect of an offence referred to in subsection (1), no evidence shall be adduced by or on behalf of the accused thatthe complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with theaccused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set outin 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. [59] The objective of this

section is to prevent evidence of a complainant’s past sexual activity from being admitted for an improperreason. The purposes of the

section were described in R v Barton, 2019 SCC 33, 435 DLR (4th) 191 [Barton]: [58] … The animating purposes behind this new regime, aligned with those of its predecessor, were to protect the integrity of the trial byexcluding irrelevant and misleading evidence, protect the accused’s right to a fair trial, and encourage the reporting of sexual offences byprotecting the security and privacy of complainants (see Seaboyer, [ (SCC), [1991] 2 SCR 577] at pp. 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 Court in Seaboyer(see Darrach, at para. 20) and established substantive rules that prevent evidence of a complainant’s sexual activities from being used forimproper 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. [60] While there may be other problems with Mr.

Dirksen’s arguments on this issue, it is sufficient for the purposes of this appeal toaddress the issue with a narrow focus. [61] Section 276(1) prevents the introduction of evidence of past sexual activity for the prohibited purposes set out in s. 276(1)(

a) or(b): Barton and R v Goldfinch, 2019 SCC 38, 435 DLR (4th) 1 [Goldfinch]. The Crown did not introduce the evidence for either of thosetwo prohibited purposes. The description of the events on the drive from Regina Beach was part of the narrative of how the eventssurrounding the offences unfolded. As further explained in the

section of this judgment that addresses bad character evidence, the

testimony was admissible to describe how the interactions between Mr. Dirksen and the young women began and escalated. L.B. testifiedthat the Regina Beach incident was the first event of this nature that had occurred with Mr. Dirksen. This incident, which could becharacterized as grooming behaviour, was the first step in the chain of events that changed the nature of that relationship and led to theoffences. It also demonstrated that Mr.

Dirksen exerted a level of control over L.B. and was able to manipulate her. [62] Turning to s. 276(2), I note that this subsection only applies when evidence of past sexual activity is sought to be introduced byor on behalf of the accused. However, the Crown may be under a common law obligation to request a voir dire, as set out in Barton: [80] … Moving to s. 276(2), while it is true that this provision applies only in respect of “evidence … adduced by or on behalf of theaccused”, the common law principles articulated in Seaboyer speak to the general admissibility of prior sexual activity evidence.

Giventhat the reasoning dangers inherent in prior sexual activity evidence are potentially present regardless of which party adduces theevidence, trial judges should follow this Court’s guidance in Seaboyer to determine the admissibility of Crown-led prior sexual activityevidence in a voir dire (see pp. 633–36). As such, if the Crown seeks to lead evidence of a complainant’s past sexual activity for a non-prohibited purpose, a voir dire may berequired.

I note that Barton and Goldfinch were released after the trial judgment, so the trial judge did not have the benefit of thesedecisions: see also R v Delmas, 2020 ABCA 152 (aff’d 2020 SCC 39). [63] The more fundamental problem with Mr. Dirksen’s argument on this point is his inability to categorize the evidence of L.B.flashing her breasts as sexual activity within the meaning of s. 276 or R v Seaboyer; R v Gayme, (SCC), [1991] 2 SCR577 [Seaboyer]. This was evidence of Mr.

Dirksen’s grooming behaviour and his ability to control L.B. to the point of convincing her toexpose her breasts to an oncoming car in exchange for a small amount of money or some cigarettes. In my view, it was not, in thecircumstances of this case, evidence of L.B.’s past sexual activity: Seaboyer and R v Langan, 2020 SCC 33. As such, a voir dire was notrequired and no error was committed by the trial judge in admitting this evidence without having held one. E. Bad character evidence [64] The arguments raised by Mr. Dirksen under this ground of appeal have two aspects.

First, he asserts the trial judge erred byfailing to prevent the Crown from introducing evidence of his bad character. Secondly, he argues that it appears the trial judge treated theevents on the drive home from Regina Beach as an offence and convicted him for that incident. [65] Mr. Dirksen points to the following as bad character evidence that should not have been admitted at the trial: (

a) testimony about the events on the drive home from Regina Beach; (

b) testimony about Mr. Dirksen requesting naked photographs from L.B.; (

c) testimony from the witnesses that they found Mr. Dirksen’s behaviour “weird”; and (

d) testimony regarding the wrestling, except for testimony that such activity frequently occurred as a fun activity. [66] Mr. Dirksen submits this inadmissible evidence of bad character crept into the trial judge’s analysis of his credibility andnegatively affected her assessment in that regard. [67] The Crown argues that the evidence was properly admissible as evidence of the relationship among the parties, the changingnature of that relationship, Mr. Dirksen’s level of control over the young women and his motives. It further submits Mr.

Dirksen’s failureto object to the testimony at trial is a bar to raising the issue on appeal. [68] Evidence of bad character – prior criminal or non-criminal behaviour – is generally not admissible in a criminal trial. Testimonythat seeks only to tarnish the character of an accused for the purposes of showing that they are the type of person who would havecommitted the type of offence now charged should not be received by a trial court.

Courts carefully guard against such propensity-basedreasoning: R v Calnen, 2019 SCC 6 at para 44, [2019] 1 SCR 301; R v L.V., 2016 SKCA 74 at para 43, [2017] 1 WWR 439; and R vMcLachlin, 2012 SKCA 74 at para 41, 399 Sask R 77 [McLachlin].

However, evidence that might otherwise be classified as bad characterevidence may be admitted if it is relevant to an issue at trial and its probative value outweighs its prejudicial effect: Goldfinch at paras 30–32; R v R.O., 2015 ONCA 814 at paras 15 and 24, 333 CCC (3d) 367; and R v G.(S.G.), (SCC), [1997] 2 SCR 716 atparas 63–65. [69] The admissible testimony of witnesses at trial is not limited to a tight description of only the actions that form the elements ofthe offence.

In most cases, a trier of fact will be assisted by a description of the actions surrounding the alleged offence in order toappreciate the events leading up to an offence and the circumstances of the offence itself: McLachlin at para 39. Without such contextevidence, it would be far more difficult to understand the sequence of events and determine the facts of a particular matter. For example,evidence of a heated argument immediately before an alleged common assault helps the trier of fact understand a potential motive and theescalating behaviour leading up to the offence.

It would rarely make sense to limit the testimony to the split second of actual physicalcontact. A trier of fact could not decide the facts of a matter in such an evidentiary vacuum.

Of course, the tendering of evidence of priorevents is subject to an analysis of its probative value versus its prejudicial effect if admission is contested. [70] Evidence of an accused’s conduct towards a complainant in the period surrounding a sexual assault can be relevant to issuessuch as motive and the nature of the relationship between the two persons: R v Litchfield, (SCC), [1993] 4 SCR 333 (WL)at paras 42–44, and R v Bourgeois, 2017 ABCA 32 at paras 40–42, [2017] 5 WWR 455 [Bourgeois] (aff’d 2017 SCC 49, [2017] 2 SCR287).

This type of evidence helps the trier of fact understand the circumstances of the offence and assess whether the Crown has proveneach element of the offence. [71] In the matter at hand, it is my view that all of the impugned evidence was properly admissible. While the evidence regardingMr. Dirksen’s requests of L.B. to flash her breasts and send him naked photographs is disreputable conduct that shows his character in a

bad light, it was admissible for the purposes of setting out the events leading up to the offences, particularly the change in the nature of therelationship being sought by Mr. Dirksen, his escalating conduct that was akin to grooming behaviour and his level of control over theyoung women. It formed a relevant part of the narrative of events and its probative effect outweighed its prejudicial effect. [72] The characterization of his conduct by the witnesses as weird, with its repetition by the Crown prosecutor, represented the useof a word to describe Mr. Dirksen’s actions.

However, there is no indication in the trial judge’s reasons that demonstrates that he wasconvicted because his actions were odd or out of the ordinary. [73] With regard to the wrestling evidence, the trial judge properly confined that evidence to testimony regarding the general natureof the wrestling plus a description of Mr. Dirksen’s actions that represented the offence in relation to A.H.D. [74] A further obstacle faced by Mr.

Dirksen in relation to challenging the admission of the alleged bad character evidence is hisfailure to object to the admission of any of the impugned testimony at trial: R. v A.L., 2020 BCCA 18 at para 152, 385 CCC (3d) 407, andBourgeois at para 37. While a lack of objections is not always fatal to the type of argument raised by Mr. Dirksen, when a party fails toobject to the admission of evidence at trial it is very difficult to argue on appeal that the evidence should not have been admitted, absent asuccessful assertion of ineffective assistance of counsel. Here, Mr.

Dirksen is not challenging the competence of his trial counsel. As such,the lack of any objections is a significant factor in determining the propriety of the trial judge admitting the evidence. Given the nature ofthe evidence now challenged by Mr. Dirksen, this absence of objection alone would be enough to dismiss this aspect of the appeal. [75] Turning to the second facet of the argument regarding bad character evidence, Mr. Dirksen contends the trial judge convictedhim of sexual assault or sexual interference for the events that occurred on the drive home from Regina Beach.

He asserts that referring tothose events as an incident led the parties and the trial judge to assume that the Regina Beach circumstances, on their own, were alleged tobe a criminal offence. He points out that the word incident is frequently used at criminal trials to refer to the conduct that forms the basisof the offence. Mr. Dirksen further argues there were five separate incidents described – with the Regina Beach drive being one of them –and five separate charges which made it appear that each incident related to an individual charge. [76] This argument has no merit.

First, the word incident is not a defined term in the Criminal Code nor is it a term of art. It wasused in this case for its simple meaning of an event or occurrence. Such a reference is a common way to avoid leading questions in anexamination-in-chief. Second, and most importantly, the record reveals Mr. Dirksen was not convicted for the events on the drive homefrom Regina Beach. In final submissions, the Crown prosecutor made it clear he was not seeking a conviction for that event and there isno indication in the trial judge’s reasons that she convicted him for that incident.

Furthermore, the trial judge applied the principles fromKienapple and entered a judicial stay of the two sexual assault charges because they were duplicative of the sexual interference charges.As a result, Mr. Dirksen was sentenced for three offences that encompassed the following conduct: (

a) sexual interference in relation to L.B. for touching her breasts, attempting to put his hands in her pants and writing on herbreasts; (

b) sexual interference in relation to A.D.H. for touching her vagina, breasts and buttocks over her clothes while wrestling; and (

c) exposing his genitals to L.B. in a parking lot. [77] It is obvious that Mr. Dirksen was not convicted of an offence for his actions on the drive home from Regina Beach. [78] This ground of appeal cannot succeed. F. Uneven scrutiny of witness testimony [79] Mr. Dirksen argues that the trial judge erred by applying a different level of scrutiny to his testimony than that of the Crownwitnesses. He asserts this error in her credibility analysis caused an unfair trial and, as a result, a miscarriage of justice occurred.

TheCrown responds by asserting the trial judge provided logical and comprehensible reasons for why she rejected Mr. Dirksen’s evidenceand why she accepted the material aspects of the evidence of the complainants. It submits she did not apply different levels of scrutiny. [80] It is useful to begin the analysis of this issue by reviewing some general principles related to the assessment of credibility.

Atrial judge’s finding of credibility is a question of fact and is entitled to significant deference upon appeal on the palpable and overridingstandard of review: R v Choli, 2019 SKCA 87 at para 52, and R v R.D.A., 2015 SKCA 100 at para 6, 465 Sask R 313. Inherent in a trialjudge’s assessment of credibility is an examination of what a witness says along with an evaluation of how he or she says it.

A trial judgeis not required to comment on, much less resolve, every inconsistency in the evidence: R v R.A., 2017 ONCA 714 at paras 44–46, 421DLR (4th) 100 (aff’d 2018 SCC 13, [2018] 1 SCR 307); R v Mehari, 2020 SKCA 37 at para 33 [Mehari] (rev’d 2020 SCC 40 [MehariSCC], without disturbing the general principles set out by the majority). [81] When an accused appeals a conviction alleging an unreasonable verdict, an appellate court cannot interfere with findings ofcredibility unless such findings cannot be supported on any reasonable view of the evidence: R v R.P., 2012 SCC 22 at para 10, [2012] 1SCR 746, and R v Burke, (SCC), [1996] 1 SCR 474 at para 7.

However, if a trial judge applies a stricter level of scrutinyto the testimony of defence witnesses than to Crown witnesses, a miscarriage of justice arises even if the verdict would not otherwise havebeen found to be unreasonable: R v M.G.S., 2021 SKCA 1 at para 39 [M.G.S.]; Mehari at paras 28–29 and 87–89 (rev’d in Mehari SCCwithout disturbing the general principles set out by the majority and dissent); and R v Owen (2001), (ON CA), 150OAC 378 (CA) at para 3.

An appeal on this ground attacks the methodology employed by a trial judge in assessing credibility and allegesdifferences in the treatment of the evidence, thereby attracting review on a standard of correctness: R v Radcliffe, 2017 ONCA 176 atparas 23–26, 347 CCC (3d) 3 (leave to appeal to SCC refused, ), and M.G.S. at para 42. [82] As recognized by Mr. Dirksen in his submissions, an appellant faces a difficult task when alleging a trial judge applied astricter level of scrutiny to the testimony of the defence witnesses than the Crown witnesses.

When it analyzes such a claim, an appellatecourt must be careful to ensure that this ground of appeal does not become a round-about way to circumvent the standard of review that isapplied to findings of credibility. In order to succeed on such a ground of appeal, an appellant must be able to pinpoint to something in the

trial record that makes it clear that different levels of scrutiny were applied. Even then, the issue identified must be sufficiently significant to establish the alleged faulty methodology and not simply devolve into disagreements about credibility: R v Wanihadie , 2019 ABCA 402 at paras 36 and 39–43 , 99 Alta LR (6th) 56, and M.G.S. at para 41 . [ 83 ] It remains an open question as to whether uneven scrutiny is an independent ground of appeal or a separate and distinct error of law: Mehari SCC and M.G.S. at para 40 .

In the same manner as Martin J. in Mehari SCC and Leurer J.A. in M.G.S. , I do not find it necessary to resolve that question on this appeal. Regardless of the categorization of this alleged error, this ground of appeal cannot succeed. [ 84 ] Here, Mr. Dirksen alleges the uneven scrutiny is first seen in the trial judge’s failure to address the young women’s motive to lie in order to avoid getting into trouble with their parents for drinking.

He asserts the trial judge ignored the complainants’ evidence that supported his version of events regarding the trouble they sought to avoid and neglected to assess their testimony for collusion or concoction in this regard. Second, Mr. Dirksen submits the trial judge simply accepted the Crown witnesses’ testimony at face value while unforgivingly scrutinizing and rejecting his testimony. [ 85 ] I will first address the evidence regarding the complainants’ alleged motive to lie and collusion in support of that motive. Mr.

Dirksen submits the complainants were worried about getting into trouble with their parents over drinking or the use of the marker to draw on each other. With regard to collusion, Mr. Dirksen alleges general opportunity and specifically points to the following portions of the cross-examination of A.H.D. as evidence of collusion: Q You guys didn’t talk about this case at all? A Before all this court stuff, yeah, but now that we’re in court, we aren’t allowed to talk about -- Q Yeah. A -- all this. So we don’t. Q This would have been before you even gave your police statement, though, right, on July 9th?

So, I mean, you guys had your journals. A Okay. Q I’m going to suggest you guys were talking about this at that time. A Yeah. Q I’m not suggesting anything by that, but, I mean, this was a big event for you. A Yeah. Q And so you guys talked about it before you went to give your statements to the police? A Kind of, yeah. [ 86 ] In my view, the submissions regarding motive to lie and collusion cannot be given effect. Mr. Dirksen highly exaggerates the depth of the complainants’ concerns about getting into trouble for drinking or their worries about being reprimanded for drawing on each other with a marker.

The allegations regarding Mr. Dirksen’s criminal conduct came to light as a result of L.B. approaching her parents after the incident with the marker in the basement of her home. The young women were not being confronted about drinking or an inappropriate use of a marker. While there was testimony regarding the complainants getting into trouble for their consumption of alcohol around the time of the events in question, there was no evidence that a confrontation, argument or discipline regarding this behavior precipitated the disclosures.

There is simply nothing of any significance in the evidence that supports Mr. Dirksen’s assertions. [ 87 ] Turning to collusion, the bare fact that a witness discusses events with another witness does not equate to collusion. There must be something more. Given the sparsity of evidence regarding collusion, it was not even necessary for the trial judge to mention collusion, but she did turn her mind to it and addressed it as follows: “The evidence from the complainants lacked some consistency, but not with regard to material events. Their evidence did not appear contrived, only influenced by the passage of time.

They also appeared to have individual memories of the events and did not appear to have colluded on any evidence”. There is nothing in the trial record that suggests the trial judge should have concluded there had been collusion, innocent or intentional, among the witnesses. The trial judge did not err by not further analyzing this issue or by concluding there was no collusion. [ 88 ] Lastly, it is my view that the trial judge did not ignore or forgive inconsistencies in the Crown witnesses’ testimony while penalizing Mr. Dirksen for his inconsistencies.

He points to relatively minor issues with L.B.’s and A.H.D.’s testimony and takes issue with the testimony of H.H. He asserts H.H.’s testimony revealed several red flags with regard to not providing the police with the truth regarding drinking and by frequently stating “I don’t remember”, or something similar, during her testimony. [ 89 ] The trial judge did not comment on all of the inconsistencies in the Crown witnesses’ testimony, but she extensively summarized the testimony of the witnesses, including areas where the complainants’ testimony was not consistent.

She was aware of, and specifically commented on, the issues with H.H.’s testimony: Initially, [H.H.] testified that they were not drinking during that visit. Then after reviewing the previous statement, she said that the two others had a sip of alcohol only. She acknowledged that she did not want to say more, and that she had not told the whole truth in her statement because she did not want to get [L.B.] into trouble. She recalled that [L.B.’s] mother regularly told her daughter not to drink.

She also recalled they were together throughout their time at his house. … I found H.H. to be a reluctant witness for reasons that did not become clear. However, her evidence did not contradict [L.B.] and [A.H.D.] in any significant way. [ 90 ] The trial judge was careful to indicate why she found the inconsistencies in Mr. Dirksen’s testimony so important to her credibility analysis as opposed to the inconsistencies in the Crown witnesses’ testimony. She found it significant that Mr.

Dirksen purported to have a very exact memory with regard to all of the events but his version of events quickly deteriorated, and then evolved, when he was subject to cross-examination. The trial judge commented on the precision with which Mr. Dirksen had given his testimony, which caused certain inconsistencies in his testimony to be glaring as opposed to the inconsistencies found in the testimony of the Crown

witnesses: Andrew [Mr. Dirksen] has a very precise recollection of the events and recited what happened with great detail. Therefore, I am concerned about why he changed certain details during cross-examination. For instance, when discussing the day they consumed alcohol, he added that this was the only time the three young women were in his room, playing video games, and he was there for only a short time. He explained that the three were hanging around downstairs, and they went up on their own to his room.

When asked to elaborate, he said he came in the house from outside, the three were drinking, and he got mad. The young women decided themselves that they wanted to go upstairs to play video games. He went up after a little bit and joined in on the video games. He said later that he did not know when they went upstairs, that they were up there when he came into the house the second time. He knew they had been drinking because there was alcohol and cups downstairs. From that, he knew they had been drinking. He went upstairs to confront them. He told them to go home, but [L.B] said she was hungry.

When asked when that occurred in relation to the incidents of drinking, he said it was after the first incident, although minutes before, he said it was after the second incident. However, in examination-in-chief, Andrew was very clear that the women followed him upstairs after the second incident of drinking, and he did not follow them. When I asked Andrew to clarify, he simply said he was mistaken in his first version of the event. However, I find this lapse significant because throughout his testimony, he gave the impression of remembering exactly what happened and when. These events occurred three years ago.

Thus, it is natural for witnesses to become confused and to not accurately recall less important matters. However, Andrew’s confusion is not consistent with the detail he provided otherwise. In addition, Andrew’s testimony sounded carefully scripted throughout. However, when Crown counsel questioned him on each detail, Andrew lost track of his story. In sum, I did not believe his evidence. It is not enough for me to disbelieve the accused.

I must also consider whether his evidence raises a reasonable doubt, and I must consider whether the evidence I do believe satisfies me beyond a reasonable doubt that the Crown has proved the essential elements of each offence. The evidence from the complainants lacked some consistency, but not with regard to material events. Their evidence did not appear contrived, only influenced by the passage of time.

They also appeared to have individual memories of the events and did not appear to have colluded on any evidence. [L.B.] and [A.H.D.] were direct, forthcoming, and not reluctant to respond to questioning from Crown or defence counsel. Neither [L.B.] nor [A.H.D.] ever hesitated to answer questions. If they did not remember, they would say so, and they would acknowledge if they were mistaken in their recollection of events. … Unlike Andrew, the women were never mixed up in their testimony. They gave the strong impression of speaking from memory.

Their testimony held together, and they were not moved on cross-examination with respect to the assaults. If they were corrected by listening to previous statements, for example, their evidence did not become less compelling. On the assaults themselves, they were not corrected. I believe the evidence of the complainants. [ 91 ] In my view, the trial judge addressed the inconsistencies in a uniform manner and did not apply an uneven level of scrutiny to the witnesses’ testimony. She did not accept any witnesses’ testimony at face value and she critically evaluated the credibility of all the testimony.

The trial judge was aware of the weaknesses in the testimony of the Crown witnesses and explicitly commented on them. In doing so, she provided cogent reasons why she found the inconsistencies in Mr. Dirksen’s testimony to be significant as opposed to those of the Crown witnesses. Different findings regarding the significance of inconsistencies for various witnesses do not, on their own, equ

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