Criminal Law - Appeals - Powers of appellate court - To receive new evidence

Appeal by the accused, AB, from convictions for three counts of sexual assault and one count of uttering death threats. The accused’s former spouse alleged that three incidents of non-consensual sexual intercourse occurred over a 26-month period following their separation. The accused testified and acknowledged that the incidents of intercourse occurred, but on each occasion the conduct was consensual and mutually agreeable. The accused was convicted by a judge sitting with a jury. Prior to trial, the accused was represented by counsel who indicated an intention to cross-examine the complainant regarding a Facebook message she allegedly sent the accused’s new wife, recounting incidents of consensual sexual activity with the accused. At trial, the accused was self-represented. Counsel was appointed to cross-examine the complainant regarding the Facebook message. The complainant denied recollection of having sent any such message. The trial judge ruled that no further cross-examination could take place and directed the jury to disregard any evidence regarding the message. On appeal, the accused adduced fresh evidence comprised of the message, a forensic computer analysis, and the complainant’s acknowledgment of having sent the message. The Crown conceded the admissibility of the fresh evidence.

HELD: Appeal allowed. The fresh evidence was relevant to the potentially decisive issue of the complainant’s credibility regarding consent and was reasonably capable of belief. The Facebook message had impeachment value as a statement inconsistent with the complainant’s claim of non-consent asserted at trial. Had the evidence been elicited at trial, it could have reasonably affected the jury’s verdict. The conviction was set aside and a new trial was ordered. Pursuant to a joint request by counsel, the order for a new trial was stayed.