R. v. K.G., 2024 ONCA 879, DECEMBER 5, 2024.

FACTS: The accused was convicted of the offence of sexual assault.  The accused appealed from conviction, arguing, in part, that “the trial judge erred in restricting his counsel’s ability to cross-examine the complainant and make submissions to the jury about the complainant’s delay in reporting and whether the complainant could have avoided the appellant and his abusive behaviour” (see paragraph 5).

The circumstances that led to the trial judge limiting the cross-examination, were described by the Court of Appeal in the following manner (at paragraph 7):

During cross-examination, appellant’s counsel sought to ask: “[Y]ou reached a point in your relationship and your life where you realized that your relationship with your – sexual encounters were not normal. It was not a game, yet you allowed it to continue.” The trial judge upheld the Crown’s objection to that question, on the basis that the question, especially its suggestion that the complainant “allowed it to continue”, engaged the myth that there was a duty on the complainant to resist or report immediately. Later in cross-examination, the trial judge upheld a Crown objection to a line of questions that suggested to the complainant that she had an option to sleep with her mother instead of in the bed where the appellant was “mounting” her. The trial judge rejected the appellant’s argument that the questions were justified because the complainant had given evidence that she would sometimes sleep in a different room to avoid sleeping with the appellant. He held that questions suggesting the complainant could have avoided the appellant and his abuse were improper.

HELD: The appeal was dismissed. The Ontario Court of Appeal held that “[e]xploring why the complainant did not do more to avoid the appellant could shed no light on whether the sexual abuse occurred. Nor could it be properly considered in assessing her credibility, since it would impermissibly seek to measure her behaviour against that of a stereotypical abuse victim” (at paragraph 9).