Decision shows failure to call possible witness insufficient grounds for appeal

By John L. Hill

Law360 Canada (March 15, 2023, 12:38 PM EDT) --
John Hill
John L. Hill
A 19-year-old man met up with a 17-year-old woman at a McDonald’s restaurant at 3 a.m. on Nov. 4, 2019. The man persuades the woman to return to his rooming house so he can arrange transportation for her to go home.

Then the stories of the man and the woman of what happened diverge. The woman claims she was sexually assaulted and threatened at knifepoint. She was able to exit the common area of the rooming house to the laundry room where she called 911. Police arrived and arrested the man and laid charges including sexual assault, assault with a weapon, unlawful confinement and utter threats.

The man argued that the whole event was consensual. Both the man and the woman agreed that a third party, a Mr. Henriques, entered the kitchen area when the assault was supposedly ongoing but neither the man nor the Crown advancing the case for the woman called Henriques to give evidence at trial.

An Ontario Court of Justice judge found the man guilty and imposed sentence. The man, identified only as A.A. appealed (R. v. A.A. 2023 ONCA 174). The grounds of appeal were somewhat novel: (1) the trial judge made a finding on an incomplete narrative of facts, (2) an adverse inference should be taken in that the Crown did not call Henriques, and (3) the judge failed to instruct himself on applicable legal principles including weighing the credibility of witness evidence as required in R. v. W.D. [1991] 1 S.C.R. 742.

On March 13, the Ontario Court of Appeal issued its decision. A.A.’s appeal was dismissed as the three-judge appeal panel found no merit in each of the grounds the appellant advanced.

On the first ground, the argument was made that there were gaps in the complainant’s narrative such as: “How did she get to leave the kitchen area without injury if indeed the appellant had a knife pressed against her torso?” The court gave this argument short shrift. It accepted the fact that peripheral details of a traumatic event can be difficult to recall and accurately describe at a later date. The case of R. v. G.M.C. 2022 ONCA 2 was cited as authority for that proposition.

As for the absence of the Henriques evidence, it was noted the trial judge failed to draw an adverse inference when this witness was not called by the Crown. The Appeal Court noted that the trial judge was asked to draw such an inference but that application was denied at trial. That ruling was not challenged on appeal. All that the Appeal Court was asked to do was to determine if the judge erred in failing to explain whether with the absence of the Henriques evidence reasonable doubt arose. The court found “there was no live issue at trial concerning whether an absence of evidence on any of the elements of the offences charged should give rise to reasonable doubt. The complainant had given direct evidence regarding the elements to each charge and there was no requirement for corroboration.”

The third ground of appeal was similarly dismissed. It was true that the trial judge did not make specific reference to the W.D. principles (R. v. W. (D.) [D.W.] [1991] 1 S.C.R. 742). However, the court held that in looking at the trial judge’s ruling as a whole, the principles of how a judge should weigh the evidence showed an appreciation for and an implied instruction to himself that he had properly assessed the evidence at trial.

The Notice of Appeal failed to include any request to review the sentence imposed. As such, the Court of Appeal did not consider any challenge in that regard.

A case such as this leaves a reader to question trial preparedness in the first instance. Obviously, if Henriques’ position was that the two were sharing intimacy amicably, a real issue of consent could have been put forward in cross-examination of the accused. Obviously, if Henriques’ statement favoured the complainant, it would be detrimental to the accused’s case to raise it. If, however, Henriques’ testimony would have been positive for the accused, trial counsel could have challenged the complainant forcibly at trial. Although there was no onus on the accused to call evidence, a portrayal of events favourable to the accused would have given the trial judge more scope to pause and reflect.

Ultimately the Appeal Court was left in the unfortunate position of having to decide whether or not to quash a verdict based only on “what ifs.” It rightly declined to do so.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the authors firm, its clients, Law 360Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.  

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