R. v. B., A.R.

R. v. B., A.R. Collection Decisions of the Court of Appeal Date 1998-09-09 Docket numbers C25432 Judges Finlayson, George Duncan; Abella, Rosalie Silberman; Moldaver, Michael James Subject Criminal Decision Content DATE: 19980909 DOCKET: C25432 COURT OF APPEAL FOR ONTARIO FINLAYSON, ABELLA AND MOLDAVER JJ.A. BETWEEN: ) ) R.J. Reynolds HER MAJESTY THE QUEEN ) for the appellant ) (Respondent) ) ) and ) Sandy Tse ) for the respondent A. R. B. ) ) (Appellant) ) ) Heard: June 10, 1998 ) FINLAYSON J.A.: [1] The appellant was convicted by a jury presided over by MacDougall J. in the Ontario Court of Justice (General Division) of one count of sexual intercourse with a female person under the age of 14 and one count of indecent assault. He was sentenced to four years and six months in the penitentiary. He appeals both conviction and sentence. [2] The appellant raised a number of objections on appeal that were not made at trial. In fact, as to one of them, reasonable doubt, trial counsel said he had no difficulty with the trial judge's charge. He said further that it was appropriate. In the circumstances of this appeal, I do not think it necessary to deal with the arguments raised by the appellant against conviction, save one. That relates to the refusal of the trial judge to give effect to the appellant's submission that counsel should be permitted to cross-examine the complainant on whether she had been sexually assaulted by other persons and, in anticipation of an affirmative answer, for permission to call evidence in rebuttal. Facts [3] The appellant and his wife lived in a small house, perhaps 20 feet by 40 feet, containing a living room, kitchen, three bedrooms, a bathroom and a utility area off the kitchen. There was a small barn adjacent to the house. The appellant and his wife had one natural son, M. and adopted four other children, including the female complainant and her twin brother. [4] The complainant testified as to a course of sexual abuse by the appellant that commenced with touching and fondling on her first visit to the appellant's home, progressing by age 8 to full sexual intercourse, and continued until she left the home at the age of 17 in 1975. She said that these sexual assaults occurred essentially anywhere in the house and in the small barn. [5] The complainant had alleged, in statements to the police, that, between the ages of about 12 and 17, she had been sexually abused not only by the appellant, but also by M. and one of her foster brothers, and, at their invitation, a number of their friends. The abuse had started with the incident, referred to in the evidence at trial, when the appellant had fondled her under a blanket on the chesterfield in the living room while the other children were present. The boys saw what was going on, and later decided, in substance, that they could do it too. Thereafter, they regularly visited the bedroom that the complainant shared with her sister B., and had sexual intercourse and oral sex with her while B. slept. They also invited two neighbourhood boys to participate in incidents of abuse outside the house. [6] The complainant had also alleged that her twin brother, R., had told her that he had seen some of the incidents of sexual abuse by his brothers, and that they had encouraged him to join in. She also alleged that an adult cousin had raped her in the same time frame. [7] It is not apparent from this outline of the proposed evidence that the appellant was compliant in the sexual activities of persons other than himself or even that he knew of them. As such, it is not part of the narrative of the evidence that the Crown could lead against the appellant. In fact, it is irrelevant to any issue relating to the culpability of the appellant. Analysis [8] Counsel for the appellant wished to examine the complainant on the criminal conduct that she alleged of others in order to permit him to call these persons to deny the allegations. I can put his trial strategy no higher than the way he set it out in his factum wherein he stated: In the case at bar, the complainant had made allegations that her older brothers, and others at their invitation, had sexually abused her as a result of having observed the Appellant's abuse. The abuse was alleged to have taken place in the same household, during the same time frame, under the same general circumstances as the Appellant's abuse. The case as actually presented at trial would be seen by the jury as a complaint of sexual abuse against the Appellant only, in which the credibility conflict was primarily between the complainant and the Appellant, with the other family members only able to say that they hadn't seen it, and disagree with the complainant about certain peripheral matters. If the defence had been permitted to bring out the allegations against the other family members and their friends, the case would have been fundamentally different B it would have appeared to the jury as a complaint that not only the Appellant but at least four other people had abused the complainant, and that all of them, and her own brother, had conspired to cover it up; and would have pitted the credibility of the complainant directly against not only the Appellant but also her adoptive and natural brothers, her sisters, and others not even members of the family. The complainant's allegations against the Appellant would have to be weighed as part of a sweeping allegation of familial abuse being alleged by the complainant. Accordingly, the fact that the complainant had made that sweeping allegation, and the evidence that such allegation was not and could not be true, would impact not just on the credibility of the complainant at large, but directly on the probability that her allegations against the Appellant, being part of that larger allegation, were true. The evidence was therefore not "collateral", and the learned trial judge therefore erred in law in excluding it. Alternatively, even if the evidence was collateral, it should have been admitted on the basis that the case turned on credibility, and the evidence could have a potentially very significant impact on the jury's assessment of the credibility conflict. [9] Ordinarily, such a situation as this would be looked at in two stages. The first is whether the question is proper and the second is whether the questioner is bound to accept the answer. In this case, counsel has made clear his intention not to accept the answer, and by implication in his double barrelled request for two rulings, that he would not ask the question unless he is permitted to attempt to contradict the complainant by calling all the other persons she said assaulted her and have them deny the assaults. [10] Accordingly, we must look at the entire process that the defence wished to introduce into this trial to determine if it is collateral to the issues before the jury. In my opinion it is. The fact that others had sexually assaulted the complainant is irrelevant to the charges against the appellant and to any defence he might have to the charges. It is an attempt to pit the complainant against her whole family and others instead of simply against her father. It is inimical to the spirit of the principle underlying s. 276 of the Criminal Code prohibiting evidence that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge against the appellant. While s. 276 contemplates sexual activities by a consenting adult complainant, I am offended at the prospect of this complainant having her entire pre-adult sex life exposed to public scrutiny on the excuse of testing her credibility: the same excuse that formally excused this type of inquiry of adult complainants. However, resort to s. 276 is not necessary. I think that this is the ultimate collateral issue and is excluded by the common law rules of evidence. [11] There is a rule of evidence in civil cases relating to similar fact evidence that has considerable application to what is proposed here. Where such evidence is offered, the court has a discretion to reject it unless if accepted it would not merely "afford a reasonable presumption as to the matter in dispute but would be reasonably conclusive, and would not raise a difficult and doubtful controversy of precisely the same kind as that which the jury have to determine": per Lord Watson in Metro District Asylum v. Hill (1882), 47 L.T. 29 at 35. In Phipson on Evidence, 14th Edition (1990), at par. 17-25, p. 374, the author states that: "On principle the court should exercise the same discretion in a criminal case, whether the evidence is tendered by the Crown or a defendant". [12] In my opinion, in the case on appeal the trial judge properly exercised his discretion and rejected the line of evidence since the tactic of the defence is directed to creating confusion by having the jury consider not one criminal case but four or five in the hope that by discrediting at least one of her allegations of sexual abuse, he can raise a reasonable doubt as to the Crown's case on the charges on which it elected to proceed. The tactic is to replace the credibility contest between the complainant and her adoptive father with one in which the complainant is in an adversarial position with all of her siblings, two of their friends and a cousin. Instead of a straightforward case of parental incest, it would become an investigation into familial abuse. [13] Furthermore, the general rule is that one cannot impugn a witness's credibility by contradicting the witness on matters which are collateral even in a case where the "core" issue is credibility. As stated in Phipson, supra, at '12-33: A party may not, in general, impeach the credit of his opponent's witness by calling witnesses to contradict him as to matters of credit or other collateral matters, and his answers thereon will be conclusive. This rule is not absolute. The test whether a matter is collateral or not is this: "if the answer of a witness is a matter which you would be allowed on your own to prove in evidence B if it had such a connection with the issues, that you would be allowed to give it in evidence B then it is a matter on which you may contradict him". [14] There is no suggestion that the appellant in this case could have led this evidence without laying the groundwork for it in the cross-examination of the complainant. In Wigmore on Evidence, Chad. Rev. Vol lllA at ss.1004 et seque, the authors set out two classes of fact that are not collateral: A(1) facts relevant to some issue in the case, and (2) facts relevant to the discrediting of a witness". In the latter category the author lists moral character, bias, corruption, skill, intoxication and illness, opportunity of observing the events, recollection, narration and prior statements. There is no provision for rebutting accusations of criminal conduct against persons other than the accused. [15] In R. v. Riley (1992), 11 O.R. (3d) 151 (C.A.), relied upon by the trial judge in his ruling, this court appears to have introduced another exception, albeit one too narrow to assist the appellant. The defence wished to continue a line of cross- examination of the complainant directed to a complaint of sexual assault she had made against another person at a time much removed from the assault under investigation. This court upheld the trial judge who refused to permit the person accused and charged as a result of that complaint to testify that he had been acquitted after a trial. The court stated at p. 154: The only legal basis of which we are aware that would justify the cross- examination of this complainant along the lines suggested would be in order to lay the foundation for a pattern of fabrication by the complainant of similar allegations of sexual assault against other men. This should not be encouraged unless the defence is in a position to establish that the complainant has recanted her earlier accusations or that they are demonstrably false. [16] In my opinion, the trial judge properly excluded any evidence proffered on the issue of whether or not the complainant was sexually assaulted on other occasions by other persons. The type of evidence proposed by the appellant engages the rule against collateral facts and is subject to the general discretion of a trial judge to exclude evidence where its probative value is outweighed by its prejudicial effect. In this regard, prejudice to the trial process is to be considered in addition to the prejudice that might arise with respect to any party or witness to the proceeding. [17] The exercise of such discretion is not a question of law and the trial judge did not err in law by excluding the proposed evidence. In R. v. B.A.W. (1991), 59 O.A.C. 323 (C.A.), rev'd [1992] 3 S.C.R. 811, this court had ruled that the appellant should have been allowed to cross-examine a complainant to show that she had lied in the statement she made to the police officer investigating into the alleged assaults by her stepfather when she told him that the appellant's sons and their friends had also assaulted her. The Supreme Court of Canada allowed the appeal. McLachlin J. for the court stated at p. 811: [2] We are all of the view that the appeal should be allowed. It was for the trial judge to determine whether the evidence, which was tendered solely on the basis of credibility, demonstrated a degree of relevance which outweighed its prejudicial value. After considering the motion on record and the submissions of counsel, he concluded that it did not. In doing so, he committed no error of law. [3] In the absence of an indication that the complainant's evidence on collateral matters might be false, the claim for its relevance was tenuous. On the other hand, its prejudice and its potential to mislead the jurors was significant. The words of this court in R. v. Meddoui, [1991] 3 S.C.R. 320, at pp. 320-321 are relevant. There Sopinka J., stated: With respect to the ground relating to cross-examination, the proposed line of questioning related to a collateral matter. Furthermore, its relevance was extremely tenuous and while wide latitude is permitted in cross- examination in a criminal case, the trial judge properly exercised his discretion in excluding the cross- examination. Sentence [18] Counsel for the appellant conceded that the sentence was within the appropriate range suggested by this court but submits it was at the high end of the range and should have been lower. In my view, the sentence was more than appropriate for a pattern of sexual assaults of this magnitude and duration by an adoptive father against his daughter. I would not interfere with it. Disposition [19] I would dismiss the appeal against conviction. I would grant leave to appeal sentence but I would dismiss the appeal. Released: September 9, 1998 MOLDAVER J.A. (dissenting): 20. I have had the benefit of reading the reasons of my colleague, Finlayson J.A., and like him, I see no merit in any of the secondary grounds of appeal raised by the appellant. 21. I am, however, unable to agree with my colleague on the central issue. With respect, I do not share his view that the evidence concerning the complainant's allegations of abuse against her foster brothers and others, which the defence sought to lead and then rebut, was collateral. Rather, in my view, the proposed evidence involved a specific attack on the credibility of the complainant which bore directly on a live issue in the case. As such, it was relevant to a fact in issue and the question of admissibility depended solely upon whether the prejudicial effect of the proposed evidence substantially outweighed its probative value. 22. My reasons for coming to this conclusion are fact specific. They depend largely upon the circumstances surrounding the complainant's allegations against the appellant and the appellant's reliance on those circumstances to discredit her allegations and show them to be false. COMPLAINANT'S POSITION 23. The complainant testified to a course of sexual misconduct by the appellant that began on her first visit to his home, when she was age 4, and continued on a regular basis until 1975, when she turned 17 and left home. On her own estimate, the incidents of abuse, which ranged from improper touching to full intercourse, numbered approximately 1,000. For the most part, the complainant stated that the abuse occurred at night and it generally took place in the family home and camper, as well as a small barn adjacent to the home. 24. Within the home, the complainant claimed that the illicit sexual activity occurred in the living room, bedroom, basement and kitchen. When asked whether her foster brothers and sister were at home on these occasions, she stated that "they could have been", although she could not be sure. APPELLANT'S POSITION 25. The appellant's defence was one of general denial. He testified that at no time did he sexually abuse the complainant and that her allegations against him were false. 26. In support of his position that he had been falsely accused, the appellant placed considerable reliance on the evidence of other family members who testified that over the years, they had not become aware of any sexual misconduct on his part towards the complainant. The importance of this evidence was underscored by the living conditions that prevailed in the household throughout the entire time frame when the abuse was said to have occurred. 27. By all accounts, including that of the complainant, the family of seven lived in a very small home in which the living room, kitchen, three bedrooms, a bathroom and a utility room were all contained in a space measuring 20 x 40 feet. The household was described as a bee-hive of activity, with people constantly coming and going. Living conditions were cramped and privacy was in short supply. 28. Having acquainted the jury with the living conditions in his home, and the fact that his alleged abuse had gone undetected by other family members, the appellant quite properly invited the jury to take these factors into account in assessing the complainant's credibility. 29. His position in this regard was straightforward. It involved nothing more than asking the jury to use its common sense in deciding whether, under the circumstances, it was at all likely that he could have sexually abused the complainant in the family home, as she claimed, on literally hundreds of occasions, without being detected by other family members. To the extent that the jury agreed with him and found the complainant's version to be improbable, it would be but a short step for the jury to further conclude that her allegations might well be false and that she ought not to be believed. THE PROPOSED EVIDENCE 30. It is against this backdrop that the appellant sought to cross-examine the complainant on her allegations of sexual abuse against her foster brothers and others and, in anticipation of an affirmative answer, to call rebuttal evidence. 31. The state of the record is such that very little is known about the nature or extent of those allegations. Clearly, they form part of the statement which the complainant gave to the police in 1993. Regrettably, that statement is not included in the record and the details of it remain sketchy. Moreover, as the record reveals, the trial judge refused defence counsel's request for a full voir dire. In the opinion of the trial judge, there was no need to flesh out the complainant's allegations of abuse against her foster brothers or others because the proposed evidence was collateral and the appellant was not in a position to show that the allegations were demonstrably false. In this regard, the trial judge relied upon this court's decision in R. v. Riley (1992), 11 O.R. (3d) 151, which he found to be dispositive. 32. Accordingly, defence counsel's submissions are the only source from which the nature and extent of the complainant's allegations against her foster brothers and others can be gleaned. 33. Those submissions reveal that according to the complainant, for a five year period commencing in 1970 when she was 12 and continuing to 1975, she was sexually abused on a regular and persistent basis by her foster brothers and others. The abuse took various forms, including oral sex and full intercourse and it occurred in the family home and elsewhere. 34. Within the family home, the complainant claimed that her foster brothers and others would regularly visit her in the bedroom she shared with her foster sister B. and they would take turns having oral sex and full intercourse with her while B. slept. In her statement, the complainant also claimed that in a conversation with her natural brother R., R. told her that the foster brothers had encouraged him to participate in the sexual activity but he had declined. 35. The defence sought to put these allegations to the complainant and ask her if they were true. In the event of an affirmative response, it was the intention of the defence to call rebuttal evidence. That evidence took several forms. 36. First, the foster brothers and others were prepared to state that the allegations against them were false. Secondly, the complainant's natural brother R. was willing to state that his foster brothers never encouraged him to participate in sexual misconduct with the complainant and at no time did he say anything that would have led her to believe otherwise. Thirdly, and most importantly, the complainant's foster mother and her sister B. and brother R. were prepared to testify that at no time did they ever see or hear anything that would lead them to suspect, let alone conclude, that the complainant was being sexually abused by her foster brothers or their friends. 37. Significantly, in seeking to have the proposed evidence admitted, defence counsel made it clear that the evidence was not being tendered solely or even primarily for the purpose of attacking the complainant's general character or her credibility at large. To the contrary, it involved a specific attack on her credibility which bore directly on the issue that formed the heart of the appellant's defence, namely, that the complainant's version of the events was so highly improbable that she should not be believed. 38. Further, without this evidence, the jury would have a distorted picture of the state of affairs in the appellant's household. If the complainant were to be believed, she was regularly abused not only by the appellant but most of the other male occupants and even visitors to the home. Although the complainant claimed that she had been sexually assaulted by many others during the same time period and in the same location, by limiting the indictment to allegations against the appellant, the Crown was able to leave the jury with the false impression that since the appellant alone assaulted the complainant, it was possible that her story was true notwithstanding the cramped living quarters and the lack of privacy. 39. In short, I am of the view that the proposed evidence was not collateral because it was capable of resolving an essential element of the case, namely, the appellant's opportunity to commit the offences under the living conditions that prevailed in the household. 40. In attempting to portray the proposed evidence as collateral, I believe that the Crown takes too narrow a view of the facts in issue in this case. The issues in the case are not defined solely by the Crown's allegations or the elements of the offence that the Crown must prove but by the facts. As Cory J. said in R. v. Aalders (1993), 82 C.C.C. (3d) 215 at 230 (S.C.C.): It is true that the Crown cannot split its case to obtain an unfair advantage. Nor should the Crown be able to put in evidence in reply on a purely collateral issue. However, it is fit and proper that reply evidence be called which relates to an integral and essential issue of the case. In such circumstances, it would be wrong to deprive the trier of fact of important evidence relating to an essential element of the case. The course of a trial, particularly a criminal trial, must be based upon rules of fairness so as to ensure the protection of the individual accused. However, the rules should not go so far as to deprive the trier of fact of important evidence, that can be helpful in resolving an essential element of the case. [Emphasis added.] 41. It is in this sense that the proposed evidence differed from the evidence which the defence sought to tender in Riley, supra, and R. v. B.A.W., [1992] 3 S.C.R. 811 (S.C.C.). 42. In Riley, the accused was charged with sexually assaulting C.L. and J.Z. In his cross-examination of C.L., defence counsel sought to lead evidence to show that she had falsely accused one Roswell of sexual assault on a prior occasion.1 43. The trial judge refused to permit this evidence and Riley was convicted. On appeal, this court found that the evidence relating to Roswell involved a collateral issue of credibility and as such, it was inadmissible unless the defence could establish that the complainant had recanted her earlier accusations or that they were demonstrably false. 44. That is precisely the reasoning which the trial judge applied in the instant case for refusing to permit the defence to lead and then rebut the evidence of the complainant's allegations of sexual abuse against her foster brothers and others. Indeed, in the opinion of the trial judge, the case before him was indistinguishable from Riley and he accordingly ruled the proposed evidence inadmissible. 45. With respect, I do not agree with the trial judge's analysis. In my view, Riley is distinguishable from the case at hand. 46. In Riley, the court had no difficulty in concluding that the proposed evidence was collateral because the allegations against Roswell were entirely unrelated to those against Riley. Apart from the fact that each was alleged to have sexually assaulted the same complainant, there was no nexus whatsoever between the incidents giving rise to the respective charges. Accordingly, the court quite properly concluded at p. 155, "that this cross- examination was on a collateral matter in that it was essentially an attack on the general character of the complainant." That, however, is not this case. 47. Here the two sets of allegations were linked both temporally and spatially and the proposed evidence was not being offered as a general attack on the complainant's character but a specific attack designed to show the improbability of her allegations and expose them as being false. 48. Unquestionably, B.A.W. is closer on its facts to this case than Riley. Indeed, Crown counsel took the position that the present case is indistinguishable from B.A.W. With respect, I do not agree. 49. In B.A.W., the accused was charged with having sexually assaulted his three step-daughters. In a statement given to the police, one of the step-daughters alleged that she had been sexually abused not only by her step-father but also by his two sons and several of their friends. 50. The defence sought to cross-examine the complainant to show that her allegations against the sons and others were false. 51. The record at trial reveals that upon being questioned, one of the sons admitted to having oral sex with the complainant, while the other denied her allegations. 52. The trial judge refused to permit the proposed cross- examination. His reasons in this regard are brief and I shall reproduce them shortly. Before doing so, however, it is useful to consider the following exchange that took place between the trial judge and defence counsel in the course of argument: THE COURT: But how does the fact that she did or did not have the experience which is alleged with the step-brother and the friend have anything to do with the legitimate defence here of the accused for instance, well I did not do it. I have nothing to do with it. How does it go to that issue which is really the principle issue? MR. REIMER: Well the only way which it goes to the issue your honour, is as I say, if the jury finds that she has untruthfully alleged sexual assaults in the past they may be more prepared in this instance to believe that she is making an untruthful allegation about sexual assaults in the context of this trial. THE COURT: But doesn't that rather relate to what is called in some of those cases an overview, or an attack upon her general credibility as opposed to specific credibility, namely whether or not she did have anything to do with the accused. MR. REIMER: Yes, your honour. THE COURT: And if it does then aren't we then faced with the issue which is raised by Mr. Barnes that what we are talking about here seems that we are dealing with a general credibility. That we are really dealing with a collateral issue completely as opposed to a specific. Your more concern is with the credibility as such. We are not concerned with the character or generally whether she is a liar. For even if you have a person who is a liar, lets say in the community at large that is known to be a liar, doesn't mean that in that particular instance that she is lying. [Emphasis added.] 53. This exchange is important because it reveals that the proposed evidence was being offered solely for the purpose of attacking the complainant's general credibility. It had no bearing whatsoever on her specific credibility and there was no attempt to link it to a live issue in the case. 54. Bearing in mind the underlying purpose of the proposed evidence, the trial judge ruled it to be inadmissible. He stated: I have not been persuaded here that the proposed evidence of past sexual activity would further a legitimate defence. I do not find the proposed evidence to be relevant to the issue before the court. It has no real probative value on the facts in issue. I find that such evidence in any event would only go to the collateral matter, collateral issue and on that basis alone should not be admitted. 55. B.A.W. was convicted at trial. On appeal to this court, he successfully challenged the trial judge's ruling. On further appeal to the Supreme Court of Canada, McLachlin J., for the court, found that the trial judge had not erred in rejecting the proposed evidence. 56. My colleague has reproduced the reasons of McLachlin J. in full and they need not be repeated. Notably, at p. 812 of her reasons, McLachlin J. found that the proposed evidence was collateral. No doubt, that finding was premised on her earlier observation at p. 811 that the evidence "was tendered solely on the basis of credibility." By this, I take it that McLachlin J. was referring to the trial judge's finding that the proposed evidence was being offered for the sole purpose of attacking the complainant's general credibility as opposed to her specific credibility and accordingly, it was not relevant to a live issue. 57. It is this feature of B.A.W. that distinguishes it from the case at hand. Unlike this case, in B.A.W. there was no attempt to link the proposed evidence to a specific issue bearing directly on the complainant's credibility. To the contrary, as was the case in Riley, the evidence was designed to portray the complainant as the type of person who should not be believed because she had a propensity to make up false accusations. 58. It follows, in my view, that B.A.W. is distinguishable from the case at hand and it does not assist in resolving the central issue. THE PROPER TEST 59. In view of my conclusion that the proposed evidence was not collateral but relevant to a live issue, the trial judge applied the wrong test in determining its admissibility. The test for admissibility depended solely upon whether the prejudicial effect of the proposed evidence substantially outweighed its probative value. Regrettably, the trial judge did not engage in this analysis and I am not in a position to say that he would necessarily have arrived at the same conclusion had he done so. 60. In this respect, my hands are tied to a large extent because of the state of the record. As I have already observed, the complainant's statement to the police containing the allegations against her step-brothers and others does not form part of the record. More importantly, having regard to the nature of the proposed evidence and the number of witnesses involved, I am inclined to the view that a full voir dire was required to properly address the issue of admissibility. It will be recalled that the defence request for such a voir dire was rejected by the trial judge. PREJUDICIAL EFFECT VS. PROBATIVE VALUE 61. While I agree with my colleague that the proposed evidence was potentially prejudicial to the trial process and to the complainant, I have no way of gauging the degree or extent of that prejudice. 62. Clearly, the admission of the evidence would prolong the trial but to what extent, I cannot say. Admissibility would also result in a series of mini-trials within the main trial but I have no way of knowing to what extent this would deflect the jury's attention from the main issue. Any concerns in this regard could probably be met by a limiting instruction from the trial judge, setting out in clear terms the purpose for which the evidence had been admitted and its relevance to the central issue. In this respect, the principles are no different from those which govern the admissibility of similar fact evidence. 63. With respect to the complainant, while I readily concede that it would be unpleasant for her to have to recount her experiences with other family members, that is not a basis for excluding relevant evidence, nor can it trump the appellant's right to make full answer and defence. Nor can I accept that the proposed evidence offended against the spirit of the principle underlying s. 276 of the Criminal Code. As Morden A.C.J.O. held in R. v. Darragh (1988), 122 C.C.C. (2d) at 240 (Ont. C.A.), s. 276 excludes evidence of prior sexual conduct where such evidence is tendered solely to support the inference that the complainant is by reason of the sexual nature of the conduct less credible. That was not the purpose for tendering the evidence in this case. The sexual nature of the conduct was incidental. It was the fact that the complainant alleged repeated assaults by so many people, including the appellant, without her mother, sister, brother, or any one else knowing, that made the evidence relevant. 64. On the probative side of the ledger, I have attempted to show that the proposed evidence was significant because it played directly into the central theme of the appellant's defence. 65. In assessing the potential probative value, I have also taken into account a rather disturbing feature of the complainant's evidence which the Crown led in-chief and which the defence explored to a limited extent in cross-examination. 66. According to the complainant, in 1991, some two years before she complained to the police and disclosed the allegations of abuse against not only the appellant but her foster brothers as well, she attended a Thanksgiving dinner at the home of one of her foster brothers, where, in the presence of her two offending foster brothers and their spouses, she proceeded to disclose the details of the appellant's abuse towards her. 67. This evidence, led initially by the Crown in-chief to rebut the defence of recent fabrication, is, to say the least, troublesome. While the complainant may have had a valid reason, it is difficult to understand why she would choose to disclose the appellant's abusive conduct to her foster brothers, if, as she claimed, they too had abused her on a regular basis for a period of five years. The trial judge's ruling precluded the appellant from bringing this potentially damaging evidence to the jury's attention. CONCLUSION 68. In sum, having regard to the whole of the circumstances, I am not at all persuaded that the trial judge would have excluded the proposed evidence had he applied the proper test. Nor can I say that the verdict would necessarily have been the same had the evidence been admitted. 69. Accordingly, I would allow the appeal, set aside the convictions and order a new trial. _______________________________ 1 Roswell had been charged with having sexual assaulted C.L. but he was acquitted at trial.