R. v. T.O., 2023 ONCA 222, MARCH 31, 2023.
FACTS: The accused was convicted of the offence of sexual interference. At his trial, the complainant testified that when she was a child, she had touched the accused’s penis. At the “criminal discovery preliminary”, when asked if she had done so, she replied: “I don’t think so. I can’t remember for sure, but I don’t think so.”
In convicting the accused, the trial judge considered this evidence and stated (see paragraph 21):
The only detail that was subjected to any serious cross-examination was her description of being compelled to touch the accused’s penis, because her disclosure of this abuse was inconsistent between her police statement, Criminal Discovery evidence and trial evidence. The complainant offered a compelling explanation for this discrepancy when she described feeling uncertain, nervous, and alone when she testified by videoconference at the Criminal Discovery. In my view, her explanation was further bolstered by the fact that she elected to travel from Alberta to Ontario during a pandemic to testify in person at trial rather than testify again by videoconference.
The accused appealed from conviction. He argued, in part, that the trial judge erred in “resolving the material inconsistency on whether the complainant touched the appellant’s penis in an unreasonable and illogical way using oath-helping” (at paragraph 23).
HELD: The appeal was allowed and the conviction set aside. The Ontario Court of Appeal indicated that “[t]he rule against oath-helping prohibits the reception of evidence solely for the purpose of establishing the truthfulness of a witness” (at paragraph 36).
The Court of Appeal concluded that the trial judge erred in relying upon “a matter that was not in evidence before the court” and in relying upon evidence that “was not relevant to [the complainant’s] credibility or reliability” (at paragraphs 43 to 47):
Before applying the principles of the rule against oath-helping to this case, I first observe that the fact that the complainant travelled to Ontario to attend the hearing in person and felt that it was important to do so, was not a matter raised or discussed in evidence. It was reported by Crown counsel to the court. Even before considering the principles that apply to oath-helping evidence, in this case, the trial judge’s reliance in her reasons on a matter that was not in evidence before the court, and not subject to cross-examination, affects the fairness of the trial in respect of that part of the reasons. The trial judge was not entitled to use that information for any purpose, at least without raising it with counsel and receiving submissions: see e.g. R. v. J.M., 2021 ONCA 150, 154 O.R. (3d) 401, at paras. 38, 74 re judicial notice.
Applying the principles that govern the rule against oath-helping, the information that the complainant chose to travel to Ontario to give her evidence in person was not relevant to her credibility or reliability. While it could indicate that she wanted to be in a more comfortable atmosphere when she testified, that does not speak to the truthfulness or accuracy of her testimony on either occasion, both being under oath.
Nor was that information responsive to the inconsistency, such as something that specifically jogged her memory of the actual occurrence, as required for any such evidence (if it had been evidence) to be admissible under the second exception to the rule against oath-helping: Tash, at para. 43.
In the result, the trial judge’s use of the information that the complainant wanted to travel to Ontario to appear in person at the trial was impermissible oath-helping and constituted an error of law.
Unlike in Santhosh, the trial judge relied heavily on this information in order to resolve a direct inconsistency in the complainant’s evidence on a material issue, namely in the couch and garage occurrences, whether she touched the appellant’s penis. The invitation to sexual touching count was particularized as the appellant inviting the complainant to touch the appellant with her hands. As a result, the conviction for invitation to sexual touching cannot stand.
 My understanding is that in Ontario, if committal is not in issue, there are times when a “discovery preliminary” is held. At such a hearing, a judge does not preside. The complainant is questioned and their evidence recorded. Afterward, a judge issues a committal order with consent.