In R. v. Lai, 2022 ONCA 344, May 3, 2022, the accused was convicted of the offence of sexual assault. It was alleged that the accused had touched the complainant’s vagina during an examination.
In convicting the accused, the trial judge did not accept that the Crown had proven beyond a reasonable doubt that the accused had touched the complainant’s vagina. However, she concluded that when the accused removed a towel from the complainant, this constituted the application of force for a sexual purpose.
The accused appealed from conviction, arguing that the trial was unfair because of the trial judge’s “introduction of a path to liability, which differed from the Crown’s theory”.
The appeal was allowed and a new trial ordered. The Ontario Court of Appeal concluded that “the trial judge’s decision to inject this new source of liability transformed the towel removal from something that merely informed the appellant’s conduct, into a basis, standing alone, to ground a finding of guilt” (at paragraphs 13 to 17):
We fully appreciate that a trial judge is not tethered to only those theories advanced by the parties: R. v. R.H., 2022 ONCA 69, at paras. 19-20; nor are they confined to the role of a mute, passive observer: R. v. Felderhof (2004), 68 O.R. (3d) 481 (C.A.), at para. 40. We also recognize that defence counsel could have sought to re-open the case and continue her cross-examination of the appellant or call further evidence. That said, “[t]rial fairness considerations may intervene and foreclose consideration of alternative base of liability inconsistent with the way the parties have conducted their respective cases”: R. v. Largie, 2010 ONCA 548, 101 O.R. (3d) 561, at para. 161. This is one of those cases because, while the Crown did adduce evidence about the towel being removed, it was clear to everyone involved that the fundamental issue, from beginning to end, was whether the vaginal examination was a sexual assault. There was no ambiguity about this. It was understood by all.
We must also reject the Crown’s argument that any potential prejudice to the appellant could have been avoided had counsel applied to reopen the evidence. Reopening the evidence will, in some cases, overcome potential prejudice. In this case, however, the theory of liability introduced by the trial judge at such a late stage was so dramatically different from the basis on which the case had been litigated that it rendered the possibility of reopening the evidence for further cross-examination of the complainant, and perhaps additional evidence, an inadequate and unrealistic remedy.
In the end, the trial judge’s decision to inject this new source of liability transformed the towel removal from something that merely informed the appellant’s conduct, into a basis, standing alone, to ground a finding of guilt.
This was a drastic change, made far too suddenly, and too late in the proceedings. While we have not dealt with the argument about the reasonableness of the verdict based on the removal of the towel, we do observe that the submissions of both counsel on that issue demonstrate the myriad of important evidentiary questions left unanswered on the minimal evidence introduced at trial on that issue.
For the reasons set out above, the appeal is allowed, the conviction is quashed, and a new trial is ordered.