R. v. Kennedy

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation: R. v. Kennedy, 2020 NLCA 25 Date: July 17, 2020 Docket Number: 201701H0094 Restriction on Publication: By Court Order made under subsection 486.4(1) of the Criminal Code, information that may identity the person described in this judgment as the complainant shall not be published in any documents, broadcast or transmitted in any way. BETWEEN: HER MAJESTY THE QUEEN APPELLANT AND: JOHNATHAN KENNEDY RESPONDENT Coram: Green, Hoegg and Goodridge JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador (General Division) 201101G7057 Appeal Heard: September 13, 2019 Judgment Rendered: July 17, 2020 Reasons for Judgment by: Goodridge J.A. Concurred in by: Green J.A. Separate Concurring Reasons: Hoegg J.A. Page 2 Counsel for the Appellant: Dana E. Sullivan Counsel for the Respondent: Rosellen Sullivan Goodridge J.A.: INTRODUCTION [1] Johnathan Kennedy was acquitted of sexual assault (section 271 of the Criminal Code) following a trial by judge and jury. There was no dispute that he had sexual contact with the complainant; the trial focused on the exact nature of that sexual contact, and whether the complainant had consented. [2] The Crown appeals the acquittal, alleging that errors were made by the trial judge in his jury instructions, and in various voir dire decisions allowing or excluding admission of evidence. [3] Mr. Kennedy disputes that errors were made by the trial judge, and adds that the errors alleged by the Crown would have had no material bearing on the acquittal because the jury did not believe the complainant. Mr. Kennedy maintains that the complainant was a consenting participant in the sexual contact and that her version of events, describing resistance and protests, was not truthful. ISSUES [4] The issues for consideration, as defined by the grounds of appeal, include: - Did the trial judge err in his instructions to the jury on the meaning of consent? - Did the trial judge err by allowing the jury to consider, as a possible defence, honest but mistaken belief in communicated consent? - Did the trial judge err in his instructions to the jury on the defence of honest but mistaken belief in communicated consent? - Did the trial judge err by characterizing the evidence of a physician as expert evidence? Page 3 - Did the trial judge err by allowing evidence about the complainant’s alleged prior sexual contact with Mr. Kennedy? - Did the trial judge err by excluding evidence of observations (abrasion and dried blood in the vaginal area) made by the emergency room nurse who conducted a physical examination of the complainant? - Did the trial judge err by excluding the DNA report arising from the examination of vaginal swabs and clothing of the complainant? - Did the trial judge err in allowing expert evidence, from a registered psychologist, about Mr. Kennedy’s functional illiteracy and limitations in communication skills? - If there were errors, did the errors affect the verdict? BACKGROUND [5] Mr. Kennedy (age 19 at the time) and the complainant were former classmates and had been friends for six years preceding the alleged assault. On March 13, 2011 at 10:44 p.m., the complainant sent a text message to Mr. Kennedy suggesting that they meet – “Want to get a coffee or something”. The two met at a Tim Horton’s and from there took a drive in Mr. Kennedy’s vehicle to Topsail Beach, and eventually to Worsley Park, in the Town of Conception Bay South. Both testified that they had sexual contact in Mr. Kennedy’s car while at the park. Mr. Kennedy says it was consensual fondling (with digital penetration of vagina) and oral sex, and that it did not include vaginal intercourse. The complainant says it was non-consensual digital penetration and non-consensual sexual intercourse. [6] The complainant testified that, at Worsley Park, Mr. Kennedy drove down a secluded road and turned off his car engine and headlights. Initially they were just talking, but she noticed Mr. Kennedy moving closer toward her, to the point that she stated – “I’m getting uncomfortable, please drive me back”. Mr. Kennedy did not comply but instead continued with his advances, shifted across the center console, straddled on top of the complainant, reclined the seat back, unbuttoned and pulled down the complainant’s pants and underwear, penetrated her vagina with his fingers or hand (painfully), attempted (unsuccessfully) to have her perform oral sex, and engaged in sexual intercourse. The complainant maintains that she physically resisted from the outset and “every time I tried to Page 4 get up he would get more aggressive with pushing down”. The complainant recalled communicating her lack of consent with the words – “John, what are you doing? Get off. Stop … I don’t want to do this.” Mr. Kennedy ignored her words. That is the complainant’s version. [7] Mr. Kennedy agreed that he had pulled onto a secluded road at the park; agreed that he had sexual contact with the complainant while parked on that secluded road; but disagreed that the sexual contact was non-consensual. Mr. Kennedy says that the complainant communicated consent by her conduct – texting him with the proposal to get together, flirting with him during the drive in his car, initiating intimate contact by placing her hand on his, ‘making out’ after the car was stopped, and actively engaging with him in the sexual activity. Mr. Kennedy maintained that the complainant said nothing, and did nothing, that would signal a lack of consent; her actions communicated to him that she was a consenting participant throughout. Mr. Kennedy claimed that he and the complainant had prior occasions of consensual sexual contact, including intercourse, and that consent by conduct was similar during those prior occasions. The intimacy of ‘making out’ moved onto mutual sexual touching, then digital penetration of the complainant’s vagina, and then oral sex (complainant performing oral sex on Mr. Kennedy). There was no sexual intercourse. That is Mr. Kennedy’s version. [8] After the sexual encounter, Mr. Kennedy drove the complainant back to a Tim Horton’s, where they had started the evening. The drop off time was 1:13 a.m. on March 14, 2011. Both agree that there was a brief good-bye kiss in the car; the complainant said she did not resist the kiss because she wanted to get away without further confrontation. [9] The complainant called a friend from Tim Horton’s and waited until she arrived. During the wait, the complainant received a text message from Mr. Kennedy at 1:23 a.m. – “That was fun so what are u doing after work tommor cuzz ill have condums”. She replied – “No I still said no John you should have listened”. [10] Once the complainant’s friend arrived the two drove to that friend’s home. The next morning the complainant reported for work at McDonald’s Restaurant and, following her shift, went to the police with the complaint of sexual assault. ANALYSIS [11] Several of the grounds of appeal allege error in the trial judge’s instructions to the jury. In assessing whether jury instructions are adequate, Page 5 appellate courts apply a functional approach, asking whether the instructions as a whole enable the jury to decide the case according to the law and the evidence (R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301 at paragraph 8). The expectation is that the jury is properly, not perfectly, instructed. The jury is properly instructed when the instructions enable the jury to understand the live issues, the relevant law and the relevant evidence relating to those live issues. Did the trial judge err in his instructions to the jury on the meaning of consent? [12] The Crown says that the instructions to the jury on the meaning of consent were not adequate and, in particular, that the trial judge erred by failing to instruct the jury that: (i) silence does not amount to consent; (ii) there is no consent when the complainant expresses a lack of agreement by words or actions; (iii) there is no such thing as implied consent; and (iv) consent must be for each specific sexual act. [13] The trial judge adequately instructed the jury that silence does not amount to consent, that there is no consent when the complainant expresses a lack of agreement, and that consent must be for each specific sexual act. However, the trial judge erred in failing to instruct the jury that there is no such thing as implied consent. i) Silence does not amount to consent [14] Mr. Kennedy testified that there were no words of protest or acts of resistance by the complainant – “She didn’t tell me to stop; she didn’t tell me anything at all”. The jury was cautioned that, even if that testimony was believed, it would not automatically mean there was consent. The words that the trial judge used to convey this message were not perfect, but they were adequate – “Just because [she] did not resist … does not mean that [she] consented”. That instruction communicated to the jury that any passive conduct, including silence, does not amount to consent. There was no error. Page 6 ii) No consent when the complainant expresses a lack of agreement [15] The jury instructions, as a whole, adequately communicated that there is no consent if the complainant expresses a lack of agreement by words or actions. [16] The trial judge instructed the jury that consent required voluntary agreement, and that jurors should take into account any words spoken in assessing whether there was voluntary agreement. There was evidence from both parties as to what was, and was not, said in the car at the relevant time. The complainant testified that she clearly signaled a lack of consent with the words – “Get off; stop … I don’t want to do this”. These words of protest, coupled with the complainant’s failed efforts of physical resistance, if believed, would signal a lack of voluntary agreement and therefore no consent. Mr. Kennedy testified that the complainant said nothing to indicate a lack of consent: “She didn’t tell me anything at all”. [17] The trial judge’s instructions included the following remarks:  “Crown Counsel must prove … that [the complainant] did not consent to the force that Johnathan Kennedy intentionally applied.”  “Consent … is the voluntary agreement of [the complainant] that Johnathan Kennedy do what he did in the way in which he did it and when he did it. In other words, [the complainant] wanted Johnathan Kennedy to do what he did”.  “Consent requires knowledge on [the complainant’s] part of what is going to happen and a decision by [the complainant] without influence of force …”  “Take into account … any words or gestures that may have accompanied [the sexual activity] …”  “Look at their words and conduct before, at the time and after Johnathan Kennedy intentionally applied force to [the complainant].” [18] When these various instructions are read together, it is clear that words or actions by the complainant expressing a lack of agreement, if believed, would mean no consent. There was no error. Page 7 iii) There is no such thing as implied consent [19] Mr. Kennedy’s position was that the complainant was a willing participant in the sexual activity (communicated consent by conduct) and that he held an honest belief that the complainant consented. These are two alternative defences, either of which, if accepted, results in acquittal. The trial judge gave detailed instructions on both lines of defence, but he made errors in his instructions on honest but mistaken belief in communicated consent. One of those errors was the failure to instruct the jury, as a matter of law, that there is no such thing as "implied consent" (see R. v. Ewanchuk, 1999 SCC 711, [1999] 1 S.C.R. 330 at paragraph 31). This type of instruction will not always be required but on the facts of this matter, it was a necessary component of the jury instruction. Mr. Kennedy’s defence of honest but mistaken belief in communicated consent relied upon his interpretation of the complainant’s past and present actions to establish communicated consent. Mr. Kennedy admits that the complainant spoke no words to communicate consent. [20] This added instruction is necessary to clarify for the jury that the honest belief defence requires an honest but mistaken belief in communicated consent. The defence does not operate where the accused assumed there was consent or claims there was implied consent, in circumstances where the complainant’s words or action do not actually communicate consent. [21] In R. v. Barton, 2019 SCC 33, the Court found that a trial judge had committed a similar error, and because of that error and others, ordered a new trial. In addressing the error in failing to instruct the jury on implied consent Moldaver J. (for the majority) stated: [116] To the extent Mr. Barton may have honestly perceived Ms. Gladue's consent due to a subjective misunderstanding of the law, rather than a misperception of the facts, the defence of honest but mistaken belief in communicated consent would afford him no shelter. As I will develop, in my respectful view, the trial judge in this case erred by failing to inoculate the jury against mistakes of law masquerading as mistakes of fact. In particular, the legally erroneous notions of implied consent … (Emphasis added.) [22] Barton was filed subsequent to Mr. Kennedy’s trial, and while not changing the law, was helpful in clarifying the law on this issue, and other related issues discussed below. [23] I am of the view that the trial judge in the current matter erred by failing to instruct the jury on the legally erroneous notion of implied consent. Page 8 iv) Consent must be for each specific sexual act [24] Consent requires the agreement of the complainant to engage in every sexual act in a particular encounter and the consent must be linked to each specific act (Barton, at paragraph 88). The complainant testified about two specific sexual acts that occurred without her consent – fondling with digital penetration of the vagina, and penile vaginal intercourse. The instructions on consent referred to “the force that Johnathan Kennedy intentionally applied”, and advised jurors that the “force includes any physical contact”. This definition of ‘force’ covers both sexual acts, and in that way the trial judge advised jurors to address consent for each specific sexual act. The jury instruction would have been better had the trial judge directed the jury to first decide what sexual activity took place — and then address consent for each specific sexual act. However, the instructions given were adequate in the circumstances, for the consent issue, and there was no error. [25] The reasoning, and need, for more direct instructions arises where a complainant gives consent to one form of sexual activity but not others, which was not the case here. As stated by McLachlin C.J.C., (for the majority) in R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at paragraph 54, “agreement to one form of penetration is not agreement to any or all forms of penetration and agreement to sexual touching on one part of the body is not agreement to all sexual touching”. In this matter, there was no evidence from the complainant supporting the possibility of consent to engage in any form of sexual activity. Regardless of which sexual acts the jury accepted, the same evidence from the complainant applied, that she actively conveyed her lack of consent by words and actions. Did the trial judge err by allowing the jury to consider, as a possible defence, honest but mistaken belief in communicated consent? [26] Mr. Kennedy’s primary defence was that while sexual activity occurred, the complainant had consented. The secondary defence was that while sexual activity occurred and the complainant did not consent, he had an honest but mistaken belief that she had communicated consent by her actions. As such, Mr. Kennedy maintained that he did not possess the necessary subjective mens rea or guilty mind to support a conviction. [27] The trial judge has the discretion to assess whether this secondary defence has sufficient air of reality to be considered by the jury. In the exercise of Page 9 discretion, a judge is required to act judicially. A judge will have acted judicially “unless it is shown that he exercised his discretion under a mistake of law or under a misapprehension of the facts, or that he considered irrelevant matters or failed to consider relevant matters” (see R. v. Merdsoy (1994), 121 Nfld. & P.E.I.R. 181 (Nfld. C.A.) at paragraph 41). [28] The mere assertion by an accused that he believed the complainant was consenting is not enough to establish an air of reality. There must be other evidence beyond the mere assertion of a mistaken belief (see R. v. Osolin, [1993] 4 S.C.R. 595, at 686-687, and R. v. Park, [1995] 2 S.C.R. 836 at paragraph 35). McLachlin J. (as she then was) stated this non-contentious principle at page 649 of Osolin: … the bare assertion of the accused that he believed in consent is not enough to raise the defence of honest but mistaken belief; the assertion must be "supported to some degree by other evidence or circumstances"… [29] The Crown’s position is that the trial judge did not exercise his discretion judicially because there was no other evidence or circumstances that supported the defence and because there was no evidence that Mr. Kennedy took reasonable steps to ascertain consent. The trial judge relied, according to the Crown, entirely on Mr. Kennedy’s self-serving assertions to justify putting the defence to the jury. I do not agree with this position. [30] The honest but mistaken belief defence was supported by other evidence, and in particular, evidence of the complainant. During her testimony, the complainant stated “clearly to him, like, he did nothing wrong” and “during [the sexual activity], like, he sounded like he thought everything was fine” (Transcript of Proceedings, Volume XVII, pages 4 and 65). In addition, there was evidence from Mr. Kennedy of prior consensual sexual activity with the complainant, where conduct similar to what occurred on March 14, 2011 was relied upon as communication of consent. That testimony supports the possibility that Mr. Kennedy, in relying on prior actions that communicated consent, took the same reasonable steps, and believed that the complainant was a willing participant. That other evidence, coming from the complainant and Mr. Kennedy, was adequate to establish an air of reality for the secondary defence (honest but mistaken belief in communicated consent) and justified putting that defence to the jury. [31] The Crown also suggested that the defence of honest but mistaken belief in communicated consent could never have an air of reality in circumstances where, as here, the two versions of events are directly opposed. The Crown refers to Osolin where Cory J. stated at page 685, “In a situation where the Page 10 evidence given is directly opposed as to whether there was consent, the defence of mistake as to consent simply cannot exist”. Not all of the presiding judges on the Osolin panel embraced this comment. Sopinka J., writing separate reasons, expressed a more tentative view, and he had support from a majority of the panel, at least on that issue. At page 654 (with agreement on this issue from Lamer, McLachlin, La Forest and Gonthier JJ.) Sopinka J. stated: Excluding the defence of mistaken belief where the accused and complainant tell opposing versions rests on the assumption that either the accused's or the complainant's story is a complete account of what occurred … this is a questionable assumption. … [32] McLachlin J., in dissenting reasons, with concurrence from La Forest and Gonthier JJ., also preferred to leave the door open to the mistaken belief defence even in circumstances where the two versions of events are directly opposed. At page 652 of Osolin she stated: … I am not so convinced as my colleagues that where the evidence consists of two diametrically opposed stories, one alleging lack of consent and the other consent, it is logically impossible to conceive of the defence of honest but mistaken belief arising. While it may rarely occur, it seems to me possible for a jury to accept parts of the testimonies of both the complainant and the accused, concluding that notwithstanding lack of actual consent, the accused honestly believed in consent. … [33] In Park, L'Heureux-Dubé J., writing separate reasons, noted that “the fact that stories are diametrically opposed, as well as the degree to which they are opposed, is but one factor in the air of reality determination” (at paragraph 25). [34] In my view, the trial judge here committed no error putting this defence to the jury because it pertained to the sexual activity of fondling with digital penetration of the vagina. It was possible for the jury to believe the complainant that she did not consent and reject Mr. Kennedy’s evidence that she did consent and still find independent evidence (the complainant’s evidence that “during [the sexual activity Mr. Kennedy] sounded like he thought everything was fine”) supporting an honest but mistaken belief in communicated consent. [35] It was not an error to put this defence to the jury, but it was an error not to limit its application. This is discussed below. Page 11 Did the trial judge err in his instructions to the jury on the defence of honest but mistaken belief in communicated consent? [36] In my view, there were errors made by the trial judge in his instructions on the defence of honest belief in communicated consent. [37] Although there was no error in putting this defence to the jury, the trial judge erred by failing to limit its application, and by failing to give specific instruction on its application. [38] Mr. Kennedy denied there was sexual intercourse, and therefore the defence of mistaken belief had no possible application – and no air of reality – with respect to sexual intercourse. The trial judge was obliged to instruct the jury in that regard. As stated at paragraph 99 of Merdsoy: “Where the actus reus of the offence is denied, the defence of mistaken belief has no relevance”. In Park, at paragraphs 58 and 59, the same point was made by Sopinka J. and Iacobucci J., both indicating that there can be no air of reality to the honest but mistaken belief defence where the accused denies that the specific sexual activity took place. [39] If the jury believed the complainant’s evidence that there had been sexual intercourse, then the issue for the jury would be whether the complainant consented. The jury was not at liberty to entertain the alternative defence of honest belief in communicated consent when considering the allegation of sexual intercourse. The trial judge erred in failing to instruct the jury on this point. [40] The trial judge also erred in failing to instruct the jury that the defence of honest but mistaken belief in communicated consent is not available where an accused did not take reasonable steps, in the circumstances known at the time, to ascertain that the complainant was consenting (see section 273.2(b) of the Criminal Code). As stated by Moldaver J. at paragraph 123 of Barton, “The trial judge should instruct the jury as such, making it clear that the reasonable steps requirement is a precondition to the defence”. It was an error by the trial judge in failing to instruct the jury on this point. [41] The trial judge also erred in failing to instruct the jury on the type of evidence that can and cannot constitute reasonable steps. Regarding the latter, the trial judge should have advised the jury that the complainant’s silence (Mr. Kennedy testified, “She didn’t tell me anything at all”) cannot be considered as a reasonable step. Moldaver J. stated at paragraph 123 of Barton, “The trial judge should explain, as a matter of law, the type of evidence that can and cannot Page 12 constitute reasonable steps”. He gave examples of evidence that cannot be considered as a reasonable step, and a few of these examples are pertinent here: [107] … an accused cannot point to his reliance on the complainant's silence, passivity, or ambiguous conduct as a reasonable step to ascertain consent, as a belief that any of these factors constitutes consent is a mistake of law (see Ewanchuk, at para. 51, citing M. (M.L.)). … … [118] … [A] belief that the absence of signs of disagreement could be substituted for affirmative communication of consent is a mistake of law. As already explained, "implied consent" does not exist under Canadian sexual assault law. Further, a belief that prior "similar" sexual activities between the accused and the complainant … could be substituted for communicated consent to the sexual activity in question at the time is a mistake of law. As a matter of law, consent must be specifically renewed — and communicated — for each sexual act. Moreover, a belief that the complainant could give broad advance consent to whatever the accused wanted to do to her is a mistake of law. … [42] In the current matter, the trial judge instructed the jury to consider Mr. Kennedy’s testimony of prior similar sexual activities in deciding whether there was an honest belief in communicated consent – “You may use that evidence [of prior similar sexual activities] … to help you to decide whether Johnathan Kennedy honestly believed [the complainant] had consented to what occurred”. A belief that prior similar sexual activities between Mr. Kennedy and the complainant could be substituted for communicated consent is a mistake of law. The trial judge was obliged to caution the jury against acting on that mistake of law. The failure to include that caution in the jury instructions was an error. As stated by Moldaver J. in Barton: [119] … it was incumbent on the trial judge to caution the jury against acting on these mistakes of law. The absence of such an instruction had an immediate impact on the defence of honest but mistaken belief in communicated consent, as it allowed the defence to proceed while these mistakes of law were left unaddressed, thereby leaving the jurors without the necessary tools to engage in a proper analysis. ... [43] These errors in the jury instruction on the defence of mistaken belief in communicated consent, when taken collectively, are serious. Page 13 Did the trial judge err by characterizing the evidence of a physician as expert evidence? [44] In my view, the trial judge made no error characterizing the testimony of Dr. Peter Rogers as expert evidence. [45] Dr. Rogers is the emergency room physician who did a vaginal examination of the complainant on the day following the alleged assault. He was subpoenaed by the Crown to testify about observations he made during that vaginal examination. On examination-in-chief, the Crown asked Dr. Rogers to detail his observations – an abrasion near the lower area of the vagina, and dried blood on the outside of the vagina. The Crown did not ask Dr. Rogers to express any expert opinion based on those observations, and accordingly, did not seek to have him qualified as an expert. The Crown was aware, from earlier discussions in Court, that Mr. Kennedy’s counsel would ask that Dr. Rogers be qualified as an expert to provide opinion evidence about those observations, and specifically, an opinion about whether the dried blood that he observed originated from the abrasion. In Court, about a week preceding Dr. Rogers’ scheduled appearance to testify, Crown counsel stated that she had no objection to Dr. Rogers being qualified as an expert: I have no objection to my friend qualifying the doctor; I did not intend to qualify the doctor because we are not looking for opinion evidence. … (Transcript of Proceedings, Volume XIII, page 12) [46] On the eve of Dr. Rogers’ scheduled appearance to testify, Crown counsel repeated in Court that she had no objection “to have [Dr. Rogers] qualified to give an opinion that he cannot say how those injuries [to the complainant] took place”. [47] At the outset of the examination-in-chief, Crown counsel completed the usual preliminaries for qualifying an expert, asking Dr. Rogers about his training and experience as an emergency room physician, and entering his curriculum vitae as an exhibit. Crown counsel did not request that Dr. Rogers be qualified as an expert witness; that request came from Mr. Kennedy’s counsel just prior to commencement of the cross-examination. At that time Mr. Kennedy’s counsel informed the trial judge that she was seeking to have Dr. Rogers qualified to give opinion evidence. The relevant exchange was as follows: DEFENCE COUNSEL: My Lord, as discussed, I would be seeking to ask Dr. Rogers some questions … based on his experience as an ER doctor and outside his … Page 14 observations … So I would be seeking to have him qualified, to …go beyond his physical observations, in terms of his expertise and knowledge on the injuries. COURT: Sure, Ms. Singleton? CROWN COUNSEL: I see no issue. COURT: Thank you. (Transcript of Proceedings, Volume XVIII, page 10) [48] The trial judge did not make a formal declaration that Dr. Rogers was qualified as an expert to provide opinion evidence, but the cross-examination proceeded on that basis. Defence counsel asked Dr. Rogers for his opinion on whether the dried blood that he observed outside the vagina originated from the abrasion near the lower area of the vagina. Dr. Rogers responded that the dried blood did not originate from any abrasion he observed, and that the injuries overall did not allow him to draw conclusions about recent sexual activity. [49] In his instructions to the jury, the trial judge characterized Dr. Rogers’s testimony as expert evidence and summarized his opinions: Persons who are qualified in that subject by education, training or experience, may state their opinions about it. They may also give reasons for their opinion. … Dr. Rogers testified as to his inability to draw conclusions from his observations of the injuries to [the complainant]. The opinions of experts are just like the testimony of any other witness. Just because an expert has given an opinion, does not require you to accept it. … [Dr. Rogers] testified that the bleeding did not come from any abrasion he observed. He testified that none of the observations he made were indicative or not of recent sexual activity. (Transcript of Proceedings, Volume XXI, pages 93 and 102) [50] Dr. Rogers was not formally qualified, or declared by the trial judge, as an expert witness. However, the exchange in Court indicates an agreement, with approval of the trial judge, to accept Dr. Rogers as an expert witness based on his knowledge and experience as an Emergency Room physician. [51] These facts and circumstances differ from those in Compton v. Toyota Canada Inc., 2019 NLCA 79, where there were no preliminaries for qualifying the witness as an expert, and no agreement among counsel to recognize the witness as an expert. Here, it was known in advance that Dr. Rogers would be Page 15 testifying as an expert for the Defence, there was agreement among counsel to recognize him as an expert, and the trial judge relied upon counsel’s agreement in describing Dr. Rogers as an expert in the final jury instructions. [52] In those final jury instructions the trial judge accurately summarized the evidence from Dr. Rogers, noting that “he testified that none of the observations he made were indicative or not of recent sexual activity” (Transcript of Proceedings, Volume XXI, page 102). The trial judge also cautioned the jury “just because an expert has given an opinion does not require you to accept it” (Transcript of Proceedings, Volume XXI, pages 93). [53] As stated by McLachlin J. (for the majority) in R. v. Marquard, [1993] 4 S.C.R. 223 at 244 (S.C.C.): … The objection to the witness' expertise may be made at the stage of initial qualification, or during the witness' evidence if it becomes apparent the witness is going beyond the area in which he or she was qualified to give expert opinion. In the absence of objection, a technical failure to qualify a witness who clearly has expertise in the area will not mean that the witness' evidence should be struck. … [54] There was no objection, and in the circumstances, despite the technical failure to declare that Dr. Rogers was qualified as an expert, there was no error. Did the trial judge err by allowing evidence about the complainant’s alleged prior sexual contact with Mr. Kennedy? [55] Evidence of a complainant’s past sexual activity is generally not relevant, and therefore generally not admissible in sexual assault trials; however, in limited circumstances it may be relevant and admissible. The law governing the circumstances when such evidence is admissible is set out in section 276 of the Criminal Code. That section prohibits evidence of a complainant’s sexual history when it is used to support one of two general inferences, the so-called “twin myths”: (1) that the complainant is more likely to have consented to the alleged assault; and (2) that the complainant is less credible as a witness because of the sexual nature of the prior activity. The wording of that section, in force at the time of this charge1, provided as follows: 1 Section 276 was amended by 2018, c.29, s.21 and 2019, c.25, s.100 Page 16 Evidence of complainant’s sexual activity 276 (1) In proceedings in respect of an offence under … 271…evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant (a) is more likely to have consented to the sexual activity that forms the subject- matter of the charge; or (b) is less worthy of belief. (2) In proceedings in respect of an offence referred to in subsection (1), no evidence shall be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 276.1 and 276.2, that the evidence (a) is of specific instances of sexual activity; (b) is relevant to an issue at trial; and (c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. Factors that judge must consider (3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account (a) the interests of justice, including the right of the accused to make a full answer and defence; (b) society’s interest in encouraging the reporting of sexual assault offences; (c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case; (d) the need to remove from the fact-finding process any discriminatory belief or bias; (e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury; (f) the potential prejudice to the complainant’s personal dignity and right of privacy; (g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and (h) any other factor that the judge, provincial court judge or justice considers relevant. [56] Mr. Kennedy applied for an order allowing evidence of the complainant’s past sexual activity with him. In his affidavit in support of the application, Mr. Kennedy stated that between November 27, 2009 and May 24, 2010 he had consensual kissing and sexual touching with the complainant numerous times, oral sex at least once, and sexual intercourse at least twice. At paragraph 15 of the affidavit, Mr. Kennedy sets out his honest belief in communicated consent Page 17 for the March 14, 2011 incident, based on these occasions of prior consensual sexual contact: I acknowledge that there was sexual contact on March 14, 2011 but I believed it was consensual. I believed that it was consensual because it happened the same way that it had happened most of the other times. By that, I mean it was secret, in a car and in a secluded place. [57] Mr. Kennedy’s stated basis for adducing this evidence of past sexual activity was twofold: 1) to contradict the complainant’s statement to police (and anticipated trial evidence) that they were just friends and had no prior sexual contact; and 2) to support the defence of honest but mistaken belief in communicated consent. The trial judge allowed the application on the second basis, finding that this prior sexual contact involved specific instances of sexual activity, it was relevant to the defence of mistaken belief in communicated consent, and it had probative value that exceeded the danger of prejudice to the proper administration of justice. [58] In his decision on the voir dire (2017 NLTD(G) 171) allowing admission of this evidence, the trial judge stated: [68] In my view, the features of the subject evidence [of prior sexual contact] the accused proposes, present comparably similar salient activities between the complainant’s actions toward him in the alleged prior consensual sexual occurrences and his evidence of the interaction with her in the events comprising the basis of the [current] charge. [69] These are relevant to the issue of whether the accused held an honest belief as to her giving consent at the time of the alleged offence. … [77] I am satisfied that the proposed evidence of the accused is sufficiently particular in time and location and goes to the interaction between the accused and the complainant by which consent-conveying communication can, if accepted, be taken as allowing inference that honest belief in consent was in play at some or all of the duration of the events supporting the alleged offence. [78] In this specific case the accused would be precluded from his right to make full answer and defence if his evidence was not made available to the jury and the accused was not permitted to examine the complainant in respect of it. … Page 18 [80] As noted it is contemplated by the exemption to the section 276 prohibition the evidence in cross-examination in this case is not proposed to be directed to inferences from the sexual nature of the activity or its occurrence of itself but to other potentially relevant factors of the activity to the delict grounding the alleged offence. [81] In that context I conclude that the evidence has significant probative value and that, as noted, such outweighs the concerns of any improper invasion of the complainant’s privacy and the societal interest in encouraging victims to report offences. The admission of this evidence in my view will better serve the likelihood of a reasonable prospect of the jury arriving at a just determination. In my view, the public confidence in the administration of justice is better served by permitting the evidence to be available for assessment with the totality of the evidence to be admitted for consideration. [59] The Crown argues that the trial judge erred in coming to this conclusion because there was no air of reality to the defence of honest belief in communicated consent (see paragraph 131 of the Crown’s factum). As noted above, I am satisfied that the trial judge made no error finding that the defence had an air of reality and accordingly, I reject the Crown’s argument. [60] The past sexual contact, according to Mr. Kennedy, involved similar preliminaries – a text invitation to meet, flirtatious touching initiated by the complainant, kissing initiated by the complainant, and driving to a secluded setting. In the past, according to Mr. Kennedy’s version of events, those actions communicated consent to sexual contact. [61] In R. v. Goldfinch, 2019 SCC 38, the Court dealt with somewhat analogous circumstances, at least analogous with respect to the claim of a prior sexual relationship, and an argument of honest but mistaken belief in communicated consent. The accused claimed that he and the complainant had a ‘friends with benefits’ relationship. He applied to have that evidence admitted under section 276 of the Criminal Code, arguing that it was relevant for context and to prevent faulty impressions. The Court found that the evidence was not relevant to any issue at trial; it should not have been admitted; and its exclusion would not compromise the accused's right to make full answer and defence. [62] The facts of Goldfinch are distinguishable because Mr. Kennedy claims relevance, not for context or prevention of faulty impressions, but because the past sexual activity illustrates how the complainant previously communicated consent. On those distinguishing facts, it appears, based on comments of Karakatsanis J. (for the majority) in Goldfinch, that the evidence of prior sexual activity was properly admitted by the trial judge: [62] Prior sexual activity may be particularly relevant to a defence of honest but mistaken belief in communicated consent. However, an honest but Page 19 mistaken belief cannot simply rest upon evidence that a person consented at "some point" in the past: that would be twin-myth reasoning. By definition, the defence must rely upon evidence of how the complainant previously communicated consent so that the accused can adequately support a belief that consent was expressed… (Citations omitted). [63] R. v. Seaboyer, [1991] 2 S.C.R. 577 at 613 to 616 (S.C.C.), recognized that sexual history can be relevant and admissible evidence supporting the defence of honest but mistaken belief in communicated consent. Karakatsanis J. referred to this point in Goldfinch: [35] In Seaboyer, this Court struck down that blanket exclusion [of all evidence of prior sexual activity], holding that Parliament had cast the net too wide, impairing the accused's right to a fair trial. Improperly excluded evidence critical to the defence included evidence going to: (i) honest but mistaken belief in consent … [64] The trial judge was satisfied that Mr. Kennedy established that the proposed evidence was of specific instances of sexual activity, was relevant to his defence of honest but mistaken belief in communicated consent, and had significant probative value that was not substantially outweighed by the danger of prejudice to the proper administration of justice. In my view, there was no error coming to that conclusion. The proposed evidence directly implicated Mr. Kennedy’s ability to raise a reasonable doubt based on honest but mistaken belief in communicated consent, and the admission of the evidence was fundamental to a full answer and defence. [65] The trial judge cautioned the jury against using the evidence of past sexual contact in a way that engaged the twin myths: You must not use that evidence, however, to help you decide that because of the sexual nature of what happened, [the complainant] is more likely to have consented to what Johnathan Kennedy is alleged to have done here. You must not use that evidence to help you to decide that [the complainant] is less believable or reliable as a witness in this case. (Transcript of Proceedings, Volume XXI, page 111) [66] This caution included in the jury instruction was adequate. [67] There was no error by the trial judge in admitting the evidence or in his instruction cautioning the jury on the permitted use of the evidence. Page 20 Did the trial judge err in excluding evidence of observations made by the emergency room nurse? [68] The Crown sought to admit evidence of observations made by an emergency room nurse who examined the complainant on March 15, 2011, the day after the alleged sexual assault. The nurse observed an abrasion and dried blood in the vaginal area. [69] The Crown argued that the evidence was relevant, and probative, to the actus reus, in corroborating the pain and physical trauma described by the complainant as arising from the alleged assault. [70] Mr. Kennedy argued that the evidence was not relevant, and alternatively, if it was relevant, the prejudicial effect was out of proportion to its probative value. [71] The nurse could testify only about what she saw; she could not express any opinion as to what caused the abrasion and dried blood. Mr. Kennedy’s position was that the jury members would assume the cause was a violent sexual assault and accordingly the prejudicial effect would be substantial. [72] The trial judge agreed with Mr. Kennedy, saying admission of the evidence was problematic because the nurse could not testify as to the causal link, if any, between her observations and the alleged assault: The major difficulty is with the inability of the witness to testify as to … the likelihood or not of the proposition of the Crown. It is clear that the nurse cannot assist the jury in connecting her observations of injury to pain alleged by the complainant … In my view, the risk is apparent; that the jury will do what the nurse herself says she cannot. Probative value is absent. Prejudicial effect is apparent. I would not permit the admission of the evidence of [the emergency room nurse]. (Transcript of Proceedings, Volume II, pages 24 and 25) [73] The concern of the trial judge – that the jury will do what the nurse herself says she cannot – could have been addressed through a mid-trial instruction to the jury. It was not a proper justification for exclusion of the evidence. [74] The nurse was a fact witness, not an expert, and her evidence of the observed abrasion and blood in an area where the complainant says she was physically and forcibly assaulted (vaginal area) is highly relevant and should have been admitted. The evidence supports a material particular of the complainant’s testimony and in that way is corroborative or confirmatory. The probative value of the evidence goes to proof of an issue, namely the actus reus Page 21 of the alleged assault of non-consensual sexual intercourse. The prejudice arising from the nurse’s evidence is that it tends to prove a fact necessary to the Crown’s case. That is not the type of prejudice that justifies exclusion of evidence. The reality is that all probative evidence that the Crown presents is going to be prejudicial to the accused, to some degree. The type of prejudice that justifies exclusion of evidence relates to the fairness of the trial and the accused's right to make full answer and defence; those potential areas of prejudice are not engaged here. [75] In R. v. G. (S.G.), [1997] 2 S.C.R. 716 (S.C.C.), McLachlin J., dissenting on the outcome but not on this point, discussed what constitutes prejudice to an accused with respect to the admissibility of evidence: [100] “Prejudice”, for the purposes of this inquiry, is used in the legal, procedural sense. The fact that the evidence tendered may be powerful evidence for the prosecution does not lead to a conclusion of prejudice. The inquiry into prejudice focuses not on the effect the evidence may have on the outcome of the trial, but on its effect on the accused's right to make full answer and defence. The question is not whether the evidence may tend to convict the accused, but whether it is likely to convict him unjustly. The just or fair trial is one which gets at the truth, while respecting the fundamental right of the accused to make full answer and defence. [76] In R. v. Best, 2016 NLCA 10, 375 Nfld. & P.E.I.R. 89, a family doctor had testified to seeing bruising on the complainant’s shin shortly after the time when the complainant said she was assaulted by being kicked in the shin. On appeal, the accused argued that the trial judge erred in accepting the doctor's evidence as corroboration of the complainant's evidence respecting a kick to the shin. This Court found that there was no error, and that the doctor’s observations, as a fact witness, could be relied upon by the trier for fact. In Best this Court stated: [18] The doctor's evidence is not direct evidence and it does not prove that Mr. Best assaulted the Complainant. However, evidence does not have to conclusively prove a point in issue to be corroborative; evidence that supports a material particular of a witness's testimony can rightly be described as corroborative or confirmatory (R. v. Vetrovec, [1982] 1 S.C.R. 811 (S.C.C.), at 826-829). In this case, the doctor's evidence respecting her observations of the Complainant when she presented in the doctor's clinic confirms material particulars of the Complainant's testimony; it demonstrates that the Complainant sustained injury consistent with her testimony of injury to certain parts of her body, and the timing of the medical consultation is consistent with the Complainant's evidence as to when she was assaulted. Accordingly, the Judge was entitled to rely on the doctor's observations of the Complainant as corroborative of the Complainant's testimony. Page 22 [77] The trial judge erred by excluding evidence of observations made by the emergency room nurse. The error was minor in the context of this case because the emergency room physician, Dr. Rogers, was permitted to testify at the re- trial (there had been a mistrial initially) and he gave evidence of his observations. The effect was that the jury heard the same evidence from the doctor that was proposed to come from the nurse. Under the circumstances, the error had no impact on the jury verdict. Did the trial judge err in excluding the DNA report arising from examination of vaginal swabs and clothing of the complainant? [78] The D.N.A. report (July 21, 2011 forensic lab report of Michelle Fisher, B.Sc.) detailed the findings following an analysis of vaginal swabs and clothing of the complainant. There was no semen detected on the vaginal swabs; there was a “positive” on a screening test for semen on the underwear. The Crown acknowledged that substances other than semen can give a “positive” on a screening test (Transcript of Proceedings, Volume I, page 61). For that reason, the “positive” is of no probative value to the issue of sexual contact. In the follow-up, more comprehensive, forensic testing of the underwear, the presence of semen could not be confirmed (forensic lab report page 2). [79] Mr. Kennedy wanted the report excluded on basis of lack of relevance, and on the basis that its prejudicial effect outweighed its probative value. The trial judge agreed, noting that “the D.N.A. testing and report has no meaningful evidence – no meaningful information to present”. I agree with that conclusion. In my view, the report had no probative value to an issue at trial. It fails the admissibility test at the first of the R. v. Mohan, [1994] 2 S.C.R. 9 (S.C.C.) criteria – lack of relevance. [80] There was no error in the trial judge’s exclusion of this DNA evidence. Did the trial judge err in allowing expert evidence from a psychologist? [81] Mr. Kennedy’s counsel applied to call expert evidence from a psychologist to describe Mr. Kennedy’s learning disability and his deficiencies in verbal and written communications, and the impact of these limitations on his behaviour. Following a voir dire, the trial judge allowed the application (written reasons for decision at 2017 NLTD(G) 106). Page 23 [82] This type of expert evidence is not admissible when its purpose is to assist the jury in determination of credibility. There is a long-standing rule that the determination of credibility is a matter reserved exclusively for the jury, and jurors do not normally require expert assistance in this task. However, expert evidence about a feature of a witness’s behavior, such as Mr. Kennedy’s slow comprehension and slow response arising from his learning disability and other psychological factors, may be admissible even where the evidence has an effect on the jury’s determination of credibility. That is the situation here and the trial judge made no error in allowing expert evidence from the psychologist. [83] It is not contentious that Mr. Kennedy was functionally illiterate; had difficulty with verbal expression; had a language based learning disability; had grade three comprehension on verbal and written communication; had an intelligence quotient in the below average range (81); and had performance on verbal tasks in the borderline range. At the voir dire, the psychologist, Beverly McLean, testified that on verbal comprehension (ability to understand others and express himself) Mr. Kennedy was in the fifth percentile, which meant that he was functioning at the equivalent level of an eight-year-old child. On written language skills, he was also functioning at the equivalent level of an eight-year- old child. On mental processing speed, he was in the sixth percentile. Ms. McLean testified that, for persons with this degree of cognitive function, “it takes them a while to respond to questions … It often takes them a while to just get the gist of a conversation … they really have difficulty getting the abstractness of the communication” (Transcript of Proceedings, Volume X, page 51). Regarding the ability to answer questions, Ms. Mclean testified, “Mr. Kennedy would need more time to stop and think” (Transcript of Proceedings, Volume X, page 52). [84] Defence Counsel’s position was that, in the interests of trial fairness, the jury needed to know of Mr. Kennedy’s limitations in order to have a proper context when assessing a text message conversation Mr. Kennedy had with the complainant, and when assessing his comprehension and responses to questions in Court during direct and cross-examination. [85] In opposing the application, the Crown did not suggest that the proposed evidence was of the oath helping nature, directed at assisting the jury in determination of credibility. On the contrary, the Crown conceded that was not an issue (see Transcript of Proceedings, Volume X, page 94, and paragraph 19 of trial judge’s reasons), and argued only that the evidence was not necessary to the jury (failed to meet the Mohan ‘necessity’ criterion). Page 24 [86] On this appeal, the Crown maintains the same argument, that the expert evidence from a psychologist was not necessary. The Crown submits that the trial judge misapprehended the voir dire evidence in concluding otherwise. The Crown stated this position at paragraphs 163, 165 and 166 of its factum: 163. … the trial judge misapprehended some of the evidence at the voir dire. He failed to consider Ms. McLean’s evidence, during cross-examination, that the text message conversation in issue was not complex, and only the Respondent could explain what he meant in those messages … … 165. If the trial judge had considered Ms. McLean’s evidence during cross- examination, then Ms. McLean’s evidence was not necessary to consider the Respondent’s texting exchange with the complainant. The Respondent can read and write, he just struggles with complex words and sentences. Ms. McLean agreed the sentences and words in the text messages were not complex. The Respondent’s responses to the messages were appropriate to the comment or question posed. Only the Respondent could explain what he meant by the messages. Thus, there was no need for the jury to have the detailed evidence of the various tests performed on the Respondent and what they meant. 166. Ms. McLean’s evidence was not necessary for the jury to assess the Respondent’s answers to questions at trial. Only the Respondent could explain what happened. That the Respondent is functionally illiterate is irrelevant to how he would answer questions. As Crown counsel argued, if the Respondent took more time to answer questions, it would be apparent when he testified. Ms. McLean’s evidence was not needed for the jury to assess the Respondent’s credibility. Detailed evidence about a person’s mental processing speed, or writing or reading abilities, would have little to do with whether his evidence was internally consistent and fit, or fell, within the preponderance of probabilities, with the other evidence at trial. The jury could assess the Respondent’s evidence without the assistance of Ms. McLean. That people process information at different speeds, or that some people are brighter or slower than others is something that ordinary people are aware of, and can form a correct judgment about without the assistance of an expert. We trust ordinary people to assess the credibility of witnesses every day. [87] I do not agree that the trial judge misapprehended evidence in arriving at his conclusion that this expert evidence from Ms. McLean was necessary. [88] In his written decision, the trial judge accurately summarized the highlights of Ms. Mclean’s voir dire testimony, even though he did not mention Page 25 her testimony that the text message conversation was not complex, or that Mr. Kennedy was the best one to explain what he meant. The failure by the trial judge to repeat verbatim in his reasons these and other details of the psychologist’s voir dire testimony does not mean they were not considered. In my view, the reasons illustrate that the trial judge fully appreciated and adequately considered the voir dire testimony of Ms. McLean. There is no error based on an alleged misapprehension of evidence. [89] The trial judge found that Ms. McLean’s expert evidence was necessary to the jury’s consideration of both the text message conversation (admitted as a statement against interest) and Mr. Kennedy’s responses to questions at trial during direct and cross-examination. In his reasons the trial judge stated: [17] It would appear that there is a need for the jury to have evidence of the accused’s impairment. They will have to consider evidence of his texting exchange with the complainant. They will have to consider evidence of his answers to direct and cross-examination. [90] The trial judge noted, at paragraph 15 of his reasons, that the expert evidence from Ms. Mclean would not be adduced should Mr. Kennedy elect not to testify. That indicates the decision allowing the expert evidence was influenced by the necessity for the jury to assess Mr. Kennedy’s testimony during the trial, and in particular, to understand his atypical behaviour of delayed comprehension and delayed response. The jury assessment of his written communication, specifically his text message exchange with the complainant, was only part of the trial judge’s justification in allowing this expert opinion evidence from Ms. McLean. [91] The trial judge was satisfied that this expert opinion was necessary in the sense that it provided information outside the experience and knowledge of the jury, and enabled the jury to better appreciate or understand Mr. Kennedy’s behaviour (delayed comprehension and delayed response). [92] There are two decisions of the Supreme Court of Canada which considered the admissibility of expert evidence addressing behavior of a witness. Both decisions expose the challenge for trial judges in drawing a line between evidence about credibility, which is inadmissible, and evidence about a feature of a witness’s behavior which may be admissible even though it bears on the ultimate determination of credibility. [93] In Marquard, McLachlin J., as she then was, writing for the majority, found that the trial judge had erred because an expert witness (a physician) had crossed the line between expert testimony on the witness’s behaviour and Page 26 assessment of the witness’s credibility. However, McLachlin J. recognized that expert evidence on psychological factors which result in behaviour relevant to credibility can still be admissible, provided it goes beyond the ordinary experience of the trier of fact. At page 249 McLachlin J. stated: [51] … there is a growing consensus that while expert evidence on the ultimate credibility of a witness is not admissible, expert evidence on human conduct and the psychological and physical factors which may lead to certain behaviour relevant to credibility, is admissible, provided the testimony goes beyond the ordinary experience of the trier of fact. … [94] This passage from Marquard was referenced and followed in R. v. R.(D.), [1996] 2 S.C.R. 291 at paragraph 38 (S.C.C.). [95] In R.(D.) the three accused were charged with sexual assault and sexual abuse of three young children. The accused applied to call expert evidence from a psychologist to explain behaviors of the child witnesses in recalling events. The trial judge allowed the application in part, but prevented the psychologist from testifying about reliability of the children's memories of specific events. Major J., writing for the majority, concluded that the trial judge erred in limiting the psychologist’s expert evidence in this respect. Part of his justification for allowing this expert evidence was to explain the children’s “incredible behaviour”, because that behaviour would be part of the evidentiary basis upon which credibility could be assessed: [40] … [A]ny explanation of their otherwise incredible behaviour could only aid the trier of fact in accurately assessing their credibility. Dr. Elterman's testimony should have been admitted as an evidentiary basis upon which the children's credibility could have been judged. [96] The judge in Mr. Kennedy’s trial, satisfied on the relevance and necessity criteria, considered the balancing of probative value and possible prejudicial effect of proposed expert evidence from the psychologist, before admitting the evidence. The trial judge was satisfied that the balance favoured admission. [97] In R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, Binnie J. (for the Court) indicated that deference is owed to the trial judge where admissibility is based on balancing of probative value and possible prejudicial effect of proposed evidence: [73] In the weighing up of probative value versus prejudice, a good deal of deference is inevitably paid to the view of the trial judge … the Court recognizes the trial judge's advantage of being able to assess on the spot the dynamics of the trial and the likely impact of the evidence on the jurors. These are evidentiary issues on which Page 27 reasonable judges may differ and, absent error in principle the decision should rest where it was allocated, to the trial judge. … [98] There was no error by the trial judge in finding that the expert evidence from the psychologist was relevant and necessary, and no basis upon which to question his conclusion that the probative value of the evidence outweighed the possible prejudicial effect. If there were errors, did they affect the verdict? [99] As discussed above, the trial judge made errors by failing to instruct the jury that there is no such thing as implied consent, by allowing the jury to entertain the alternative defence of honest but mistaken belief in communicated consent when considering the allegation of sexual intercourse, by improperly instructing the jury on the defence of honest but mistaken belief in communicated consent, and by excluding evidence of the emergency room nurse. [100] On an appeal from acquittal, the Crown has the burden of demonstrating, to a reasonable degree of certainty, that the outcome may well have been affected by the errors. In R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, Fish J., for the majority, discussed this additional burden on the Crown: [14] It has been long established, however, that an appeal by the Attorney General cannot succeed on an abstract or purely hypothetical possibility that the accused would have been convicted but for the error of law. Something more must be shown. It is the duty of the Crown in order to obtain a new trial to satisfy the appellate court that the error (or errors) of the trial judge might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal. The Attorney General is not required, however, to persuade us that the verdict would necessarily have been different. [15] This burden on the Crown, unchanged for more than half a century (see R. v. Cullen, [1949] S.C.R. 658 (S.C.C.)), was explained this way by Sopinka J., for the majority, in R. v. Morin, [1988] 2 S.C.R. 345 (S.C.C.): I am prepared to accept that the onus is a heavy one and that the Crown must satisfy the court with a reasonable degree of certainty. An accused who has been acquitted once should not be sent back to be tried again unless it appears that the error at the first trial was such that there is a reasonable degree of certainty that the outcome may well have been affected by it. Any more Page 28 stringent test would require an appellate court to predict with certainty what happened in the jury room. That it cannot do [p. 374]. [16] Speaking more recently for a unanimous Court in R. v. Sutton, [2000] 2 S.C.R. 595, 2000 SCC 50 (S.C.C.), the Chief Justice stated: The parties agree that acquittals are not lightly overturned. The test as set out in Vézeau v. The Queen, [1977] 2 S.C.R. 277, requires the Crown to satisfy the court that the verdict would not necessarily have been the same had the errors not occurred. In R. v. Morin, [1988] 2 S.C.R. 345, this Court emphasized that "the onus is a heavy one and that the Crown must satisfy the court with a reasonable degree of certainty" (p. 374). [101] In Barton, Moldaver J. re-confirmed this additional burden on the Crown: [160] … this Court must keep in mind that a jury acquittal is not set aside lightly (see R. v. Sutton, 2000 SCC 50, [2000] 2 S.C.R. 595 (S.C.C.), at para. 2). To secure a new trial, the Crown bears a heavy burden: it must demonstrate that the error or errors in question "might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal" (R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609 (S.C.C.), at para. 14). A mere hypothetical possibility that the accused would have been convicted but for the error or errors will not suffice (see ibid.). However, the Crown is not required to demonstrate that the verdict would necessarily have been different (see ibid.). [102] Mr. Kennedy’s counsel argued that, even if there were errors, they had no material bearing on the acquittal. In her view, based on the brevity of the jury deliberations, and the improbable events described by the complainant, a reasonable doubt was raised on the complainant’s evidence alone, and the jury did not need to address the defence of honest but mistaken belief in communicated consent. On that basis, the errors were of no consequence. That position of counsel, in my respectful view, is based on speculation. We have no way of knowing the jurors’ thought processes. I agree with the following remarks from LeBel J., writing dissenting reasons in Graveline: [29] In this kind of analysis, absent actual knowledge of what transpired during the jury' deliberations, any conclusion will for the most part be speculative or hypothetical. What must be done is to weigh the seriousness of the errors and make a careful judgment as to their effect on the jury's deliberations in order to determine whether it is possible that the verdict would not have been the same. It cannot be proved that it would necessarily have been different, nor is that the onus that is imposed on the Crown by a consistent line of cases (authorities omitted). [103] Mr. Kennedy’s defence was based on consent, or alternatively, honest but mistaken belief in communicated consent. The trial judge erred in his jury Page 29 instruction on the meaning of consent and in his jury instruction on the defence of honest but mistaken belief in communicated consent. The latter error was especially significant in respect of the allegation of sexual intercourse because that defence was not even applicable. The acquittal may well have been based on the jury’s reliance on that defence in relation to the sexual intercourse. The trial judge’s errors were significant and directly affected the main issues for decision by the jury. The cumulative effect of these errors is such that a reasonable jury properly charged may well have reached a different verdict. PRE-CHARGE CONFERENCE [104] As I direct below, a new trial will be necessary due to these errors. At the new trial, a pre-charge conference with counsel to discuss the details of the proposed jury instruction would be helpful, and would reduce the risk of repeat errors in the jury instructions. [105] The record from the current matter indicates that the defence finished presenting its case on the Friday preceding a long weekend. Final summations and jury instructions would occur the following week. On that Friday preceding the long weekend, Crown counsel requested a copy of the proposed jury instructions to review. In response, the trial judge provided both counsel with a copy of the table of contents from Watt’s Standard Jury Instructions, with check marks, indicating items intended for inclusion. The trial judge indicted that when the court reconvened the following Tuesday he would provide counsel with a draft of his instructions and a decision tree. When court reconvened on the Tuesday, the trial judge advised that a draft of the jury instructions was not available for counsel to review. The jury instructions were delivered without counsel having an opportunity to review them. [106] Counsel who have not have had an opportunity to review a judge's jury instructions in advance, cannot be expected to advance coherent objections to it in the few moments that elapse between the completion of the charge and the time when the jury leaves the courtroom. It can be of assistance to the trial judge, and to trial fairness, if counsel have the opportunity to review, and provide input, on the jury instructions in advance. This is not always feasible due to work and scheduling demands on the court docket and on the judge’s time, but it is a good practice and will reduce the risk of error. Page 30 CONCLUSION [107] I am satisfied that the Crown has met its burden and demonstrated that the errors in question "might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal" (see Graveline, at paragraph 14). I would allow the appeal, set aside the acquittal and direct a new trial. _________________________________ W. H. Goodridge J.A. I concur: _________________________________ J. D. Green J.A. Reasons of Hoegg J.A.: [108] I agree with my colleague Goodridge J.A. that the trial judge’s errors require a new trial. I agree with his reasons for decision except for those respecting the trial judge’s ruling to admit expert testimony respecting Mr. Kennedy’s functional illiteracy. On that issue, I must say something different. [109] The expert evidence respecting Mr. Kennedy’s language-based functional illiteracy came from a psychologist who had tested Mr. Kennedy five years prior to trial. The psychologist testified that she had not seen Mr. Kennedy since, although the results of the tests she administered were typically good for six to seven years. [110] The psychologist was the only witness to testify at the voir dire to determine the admissibility of her evidence. The gist of her evidence was that Mr. Kennedy’s verbal communication skills were poor in that he had difficulty comprehending complex conversations and complex instructions and could be slow to respond to complex verbal communications. She was shown text messages between Mr. Kennedy and the complainant respecting the event giving rise to the charge, which the Crown would be tendering at trial. She agreed that they were not complex. She also agreed that Mr. Kennedy was the only one who could explain anything in the messages that needed to be explained by reference to his deficient communication skills. She added that he would not be able to explain the intricacies of his disability. My colleague describes some of the test results at paragraph 83 above. Other tests revealed that Mr. Kennedy’s Page 31 non-verbal reasoning abilities were much better developed, and that his scores in that regard were above average. [111] Counsel for Mr. Kennedy sought to have the expert evidence admitted to assist the jury in properly assessing Mr. Kennedy’s evidence respecting the text messages. Counsel also argued that the psychologist’s evidence would assist the jury in assessing Mr. Kennedy’s credibility. While the psychologist’s evidence did not engage the truthfulness of Mr. Kennedy’s evidence, counsel submitted that it would enable the jury to appreciate Mr. Kennedy’s communications shortcomings when they were assessing the credibility of his evidence. [112] The trial judge put it this way at paragraph 4 of his decision on the voir dire: The basis for tendering the evidence is that: (1) Text messages between him and the complainant [are composed of] a conversation in which statements potentially against his interests are contained and the jury should have this expert evidence in assessing his evidence about the text messages; and (2) To explain psychological and cognitive factors which may lead to behaviors relevant to his credibility. [113] The Crown argued that the text messages were not complex and that the words spoke for themselves. The Crown also argued that different people process information at different speeds and if there were a problem with Mr. Kennedy’s responses to questions at trial, he could explain why. Such explanation need not involve explaining the intricacies of the tests and their results. Accordingly, in the Crown’s submission, there was no necessity for the psychologist’s evidence. [114] The judge decided that it was necessary for the jury to hear the psychologist’s evidence. He said: [16] It is the case that this witness, if permitted to say he has a communication problem, is not able to explain it or the limitations imposed upon him by it. [17] It would appear that there is a need for the jury to have evidence of this accused’s impairment. They will have to consider evidence of his texting exchange with the complainant. They will have to consider evidence of his answers to direct and cross-examination. Page 32 [115] The judge gave another reason for admitting the psychologist’s evidence. He stated: [21] Based on a previous voir dire in which the accused testified, I am of the view that most persons would have some sense of some impairment of communication skills of the accused. However, in my view the evidence of [Ms.] McLean going to cognitive ability and its impact for the accused is not determinable by them based upon their or my assessment if I was sitting alone. [22] There is apparently misunderstanding in the texts between the accused and the complainant. The trier of fact would need to understand the limited capacity of this accused in that context. [116] The text messages were not complex. They show that Mr. Kennedy and the complainant had different interpretations of the incident which gave rise to the charge. While they had different interpretations of the incident, the words in the texts were simple and clear, and the exchange did not suggest that either was confused about what the other had meant. [117] My colleague says that the trial judge “accurately summarized Ms. MacLean’s voir dire testimony” and that his failure “to repeat verbatim in his reasons these and other details of the psychologist’s voir dire testimony does not mean that they were not considered”. I cannot agree that the trial judge accurately summarized Ms. McLean’s testimony. He did not reference her evidence that Mr. Kennedy’s difficulty was with complex conversations or abstract communications. While I agree that a trial judge does not have to repeat anything verbatim nor deal with every argument raised, it is my view that the trial judge was obligated to address the Crown’s argument that the texts were not complex and explain why it did not persuade him. If the trial judge had done so in this case, he likely would have come to the conclusion that the text messages revealed no confusion resulting from complexity or abstractness that needed to be explained by the psychologist’s testing results. The text messages disclose simple disagreement between Mr. Kennedy and the complainant. Accordingly, it is my view that the trial judge erred in ruling that the psychologist’s evidence was necessary for the jury to evaluate Mr. Kennedy’s evidence respecting the text messages. [118] The trial judge’s other basis for admitting the psychologist’s evidence was that he sensed, from hearing and observing Mr. Kennedy testify in another voir dire, that Mr. Kennedy had “some impairment of communication skills”. The judge did not identify the other voir dire to which he was referring, or what it was about Mr. Kennedy’s testifying which caused him to so conclude. Page 33 [119] Leaving aside the issue of the appropriateness of relying on evidence adduced in another voir dire, I am hard pressed to fault the judge from relying on his own perceptions of a witness in making a decision such as this one. That is a trial judge’s stock in trade, and I respect that. However, I would expect an explanation of what it was about Mr. Kennedy that caused him to conclude that his communication skills were impaired and that the jury would need the psychologist’s evidence to evaluate Mr. Kennedy’s evidence. [120] Returning to the fact that evidence adduced in another voir dire was considered by the trial judge to be relevant to his decision in the instant voir dire, I add that in evidence in another proceeding which preceded the voir dire respecting the admissibility of the psychologist’s evidence, Mr. Kennedy said that he had been gainfully employed for several years and that he currently “ran a small landscaping and heavy equipment business”. On the same day as the voir dire respecting the admissibility of the psychologist’s evidence, Mr. Kennedy testified in a voir dire respecting a section 276 application. He said that he had graduated from high school, had been gainfully employed since then, and that he was currently self-employed. I am therefore left to wonder how the trial judge could conclude that Mr. Kennedy’s language-based functional illiteracy would affect his understanding of simple text messages or his ability to respond to questions at trial when he had graduated from high school and managed to be gainfully employed several years before starting his own business. If there was something particular about Mr. Kennedy that related to the trial process and the issues before the Court, it needed to be clearly identified and linked to an explanation of why the psychologist’s evidence was necessary. As for Mr. Kennedy’s own ability to explain his functional illiteracy, I suggest that many literate people would not be able to explain the intricacies of their test results respecting their learning disabilities, and neither would it be necessary for a jury to understand such intricacies. [121] In retrospect, the trial record shows that Mr. Kennedy had no difficulty explaining the text messages. His counsel’s able submissions referenced the psychologist’s evidence, but did not suggest to the jury that it explained Mr. Kennedy’s evidence respecting the text messages. In fact, she argued that the words in the text messages supported Mr. Kennedy’s version of events. Neither did counsel suggest that Mr. Kennedy’s functional illiteracy could explain any other misunderstanding. ______________________________________ L. R. Hoegg J.A.