In R. v. B.L., 2021 ONCA 373, June 2, 2021, the accused was convicted of the offence of sexual assault.  In convicting the accused, the trial judge noted that the accused had remembered a detail of what occurred involving a condom, in cross-examination. The judge stated that this raised “a doubt in [her] mind about whether his evidence is genuine or whether he is reconstructing or fabricating the additional exchange about a condom, having heard the complainant testify earlier in the trial that she had raised this issue” (at paragraph 40).

In setting aside the conviction, the Court of Appeal indicated that it was “an error of law for the trial judge to impugn the appellant’s credibility on the basis that his evidence was tailored to the complainant’s evidence that he heard as part of the Crown’s case at trial” (at paragraph 4).

The Court of Appeal concluded that the “jurisprudence on tailoring evidence applies to the case at hand. The trial judge committed a legal error when she discounted the appellant’s credibility on the basis that he had ‘reconstructed’ or ‘fabricated’ the condom discussion after attending his trial and hearing the complainant’s evidence. The trial judge’s reasoning turned the appellant’s constitutional rights into an evidentiary trap” (at paragraph 48).