L’appel interjeté contre l’arrêt de la Cour d’appel de la Colombie-Britannique (Vancouver), numéro CA45613, 2019 BCCA 467, daté du 19 décembre 2019, a été entendu le 5 novembre 2020 et la Cour a prononcé oralement le même jour le jugement suivant :
La juge Abella — Nous sommes d’avis, à la majorité, d’accueillir l’appel pour les motifs rédigés par le juge en chef Bauman. Les juges Côté et Brown rejetteraient l’appel, essentiellement pour les motifs exposés par la juge Stromberg-Stein.
R. v. Langan, 2019 BCCA 467, j. Bauman
It is well-established that prior consistent statements may be used to assess credibility. Proper use turns on whether the statements are used to find a witness credible because of specific, permissible inferences of credibility, such as:
“evaluating the context in which the initial complaint arose, in particular the fact and timing of the complaint” (Khan at para. 43);
understanding “the sequence of events from the alleged offence to the prosecution so that [the trier of fact] can understand the conduct of the complainant and assess her truthfulness” (R. v. F. (J.E.), 1993 CanLII 3384 (Ont. C.A.) at 476, cited in Dinardo at para. 38);
or assessing if there is “evidence that an individual has a motive to lie” (R. v. Stirling, 2008 SCC 10 at para. 12).
These uses are all distinct from the impermissible use of finding credibility through repetition.
 It is well-established that prior consistent statements may be used to assess credibility. Proper use turns on whether the statements are used to find a witness credible because of specific, permissible inferences of credibility, such as: “evaluating the context in which the initial complaint arose, in particular the fact and timing of the complaint” (Khan at para. 43); understanding “the sequence of events from the alleged offence to the prosecution so that [the trier of fact] can understand the conduct of the complainant and assess her truthfulness” (R. v. F. (J.E.), 1993 CanLII 3384 (Ont. C.A.) at 476, cited in Dinardo at para. 38); or assessing if there is “evidence that an individual has a motive to lie” (R. v. Stirling, 2008 SCC 10 at para. 12).
 These uses are all distinct from the impermissible use of finding credibility through repetition.
 Courts have frequently admitted messages sent by a complainant following an alleged sexual assault under the narrative as circumstantial evidence exception to prior consistent statements: see e.g. R. v. Vlaski, 2019 ONCA 927 at para. 31; R. v. Nwoko, 2019 ONSC 2430 at paras. 28–35; R. v. Gordon, 2018 ONSC 2702 at para. 68; R. v. Crespo, 2016 ONCA 454 at para. 26; R. v. R.M., 2014 ONCA 785 at paras. 62, 67.
 Read in the context of the arguments and lines of questioning advanced at trial, the complainant’s consistency in telling her story of how “she came to the realization as to what had occurred without her consent, and her reaction to the same” was a contested issue (RFJ at para. 34). By making a finding on this point, the trial judge was fittingly responding to counsels’ submissions. It was appropriate for him to use the post-visit text messages to assess the conduct of the complainant and her truthfulness in describing it, particularly when the defence used those messages to attempt to contradict her narrative of events and diminish her credibility.
 Both my colleague and I accept that there was a permissible basis on which to admit the post-visit text messages, including the complainant’s prior consistent statements. Having accepted this, we should not speculate that the properly admitted evidence was improperly used, without clear indications to the contrary.
 We do not have those clear indications here. Instead, in the context of the positions of the parties before the court and para. 34 of the reasons for judgment, in my view, there are strong indications that the judge only used the evidence for the purposes for which it was admissible.
 I would not give effect to this ground of appeal.
The “implicit” evidence of sexual history the Supreme Court of Canada found inadmissible in Goldfinch included “the number of times [the accused and the complainant had engaged in sexual activity], the time frame relative to the relationship proper breaking up, and the last occasion [of engaging in sexual activity] prior to these alleged offences” (Goldfinch at para. 19).
 The Supreme Court of Canada in R. v. Goldfinch, 2019 SCC 38 [Goldfinch] did not suggest that the Crown is subject to the procedures set out in s. 276(2). It rather said (at para. 75) that Crown-led evidence of prior sexual activity must be governed by the principles in s. 276(1) and R. v. Seaboyer, 1991 CanLII 76 (SCC),  2 S.C.R. 577 [Seaboyer].
 R. v. Barton, 2019 SCC 33 is cited by the Court in Goldfinch in this regard. There it said (at para. 80):
Respectfully, I cannot agree. First, s. 276(1), which confirms the irrelevance of the “twin myths”, is categorical in nature and applies irrespective of which party has led the prior sexual activity evidence. Thus, regardless of the evidence adduced by the Crown, Mr. Barton’s evidence was inadmissible to support either of the “twin myths”. Moving to s. 276(2), while it is true that this provision applies only in respect of “evidence . . . adduced by or on behalf of the accused”, the common law principles articulated in Seaboyer speak to the general admissibility of prior sexual activity evidence. Given that the reasoning dangers inherent in prior sexual activity evidence are potentially present regardless of which party adduces the evidence, trial judges should follow this Court’s guidance in Seaboyer to determine the admissibility of Crown-led prior sexual activity evidence in a voir dire (see pp. 633-36).
 Seaboyer dealt with the common law approach to the receipt of evidence concerning a complainant’s sexual conduct in the context of the court having struck down the predecessor to s. 276.
 The procedure outlined by (then) Justice McLachlin did contemplate the need for a voir dire before “evidence of consensual sexual conduct on the part of a victim is received” (Seaboyer at 636).
 However, no such voir dire was required here. I do not view the tendering of Exhibit 1 (the pre-visit text messages) by the Crown here as “evidence of consensual sexual conduct on the part of a victim” (Seaboyer at 636).
 The bulk of the text messages consists of arranging logistics of a visit between the two parties. There are discussions of departure and arrival times. One could infer that the parties have a shared interest in a child, as they discuss which of them is in possession of certain shirts and a photo of these shirts shows they are small enough that they likely belong to a child.
 There is one reference to sexual activity, but it is prospective, with both the complainant and accused communicating their expectations for the weekend:
[THE COMPLAINANT:] I’m not having sex with you if that’s what your trying to get at
[MR. LANGAN:] Well I was hoping for cuddles and kisses but ok
 This is not evidence that the complainant has engaged in sexual activity. It is evidence that she does not want to in the future. Individuals are quite able to exchange text messages about their desire—or lack thereof—to engage in sexual activity with each other without having done so already.
 Even within the broad view of problematic “relationship evidence” discussed in Goldfinch, I do not think the Crown here transgressed.
 There is a reference to a change in the nature of the relationship between the two when Mr. Langan states, as part of a message exchange, “we’re not going to be together anymore”. In my view, again, this is not a discussion of sexual history. It is not specified what “be together” implies; while it may include sexual activity, it is far from “evidence” of sexual activity.
 Goldfinch emphasized that evidence of sexual activity could be implicit in evidence of an “ongoing sexual relationship” (at para. 47). For example, implicit evidence of a sexual relationship could include evidence that the accused and the complainant engaged in sexual activity whenever they stayed at each other’s houses, and had stayed at each other’s houses the week before an alleged assault. This was part of the evidence contested in Goldfinch; while the specifics of the sexual activity are not detailed, sexual activity could evidently be implied. The majority in that case concluded that given the objectives of s. 276, this evidence should still be subject to a voir dire to determine the scope of its admissibility.
 The “implicit” evidence of sexual history the Supreme Court of Canada found inadmissible in Goldfinch included “the number of times [the accused and the complainant had engaged in sexual activity], the time frame relative to the relationship proper breaking up, and the last occasion [of engaging in sexual activity] prior to these alleged offences” (Goldfinch at para. 19).
 The evidence my colleague has identified does not rise to the level of an “implicit sexual relationship”. The detailed sexual history evidence at issue in Goldfinch was starkly different from a single reference to parties “being together” in the past. In my respectful view, Goldfinch does not stand for the proposition that a one-sentence reference to a past relationship that may or may not have involved sexual activity requires a voir dire, and the failure to hold one necessarily constitutes an error of law.
 But as I have said, I do not believe that the Crown can be viewed as having tendered the text messages as “evidence of consensual sexual conduct” on the part of the complainant, as contemplated in Seaboyer (at 636). The pre‑visit text messages were tendered for an entirely different purpose.
 It is clear in light of the questioning of the complainant and the cross-examination of the accused that the Crown’s use of Exhibit 1 was directed at demonstrating that the accused could have had no expectation that prospective sex with the complainant was in the offing on the weekend. Given he testified to the contrary, this was a significant point at trial and formed part of the judge’s credibility assessment.
 There were very few references to Exhibit 1 by the parties at trial and they were limited to this issue. Indeed when the Crown in opening referred to the proposed exhibit, he said that “the vast majority of these [text messages] are irrelevant…” and during cross-examination of the complainant the Crown stated:
MR. FELDTHUSEN: And Your Honour, I apologize for flipping over numerous pages. As I had advised earlier, the bulk of things in those pages the Crown didn’t intend to tender as evidence —
THE COURT: Fair enough.
MR. FELDTHUSEN: — but in discussions with my friend he asked that it all go in for completeness.
THE COURT: No, fair enough. And they — some texts may become relevant. We don’t know.
MR. FELDTHUSEN: Certainly.
 I do not suggest that this was good practice. Parties should be precise in the evidence they lead, and should not be leading evidence where they are unsure of its relevance. However, I do not agree that a fatal mistake involving sexual history evidence was made. Indeed, in other parts of the trial the judge and Crown counsel made it clear they were keenly aware of the need to consider the issue of sexual history evidence.
 As a third and final point, I would emphasize the context in which the question of sexual history evidence is being discussed here. This is an appeal from conviction. Defence counsel’s argument on this appeal—that the absence of a voir dire for sexual history evidence should be used to set aside a conviction—is novel. In my view, this is because such an error could logically only prejudice the Crown’s case.
 The principles set out in Seaboyer and the s. 276 scheme are designed to protect trial fairness from the prohibited inferences. Defence counsel advanced no suggestion of what alternative inferences could have prejudiced the accused from the admission of sexual history evidence. In this case, the issue of a voir dire for the parties’ relationship was only identified because the defence, in their written argument on appeal, implied the judge erred by not inferring the complainant’s consent based on a sexual history with the accused. In oral submissions, the defence instead argued the failure to hold a voir dire was a reversible error of law.
 I will reiterate that I do not agree the pre-visit text messages qualify as sexual history evidence. However, I note as a general matter of logic that where sexual history evidence enters a trial that results in conviction—with no indication that the prohibited inferences affected the trial process—neither s. 276 nor Seaboyer suggest a new trial is required on this basis. To decide so would be to ignore the objectives of the law governing sexual history evidence.
 I would not give effect to this ground of appeal.
It is true that the trial judge did not explicitly state at the end of his credibility analysis that the accused’s evidence left him without reasonable doubt. However, this is not a requirement at law. The judge’s reasons must simply be sufficient to support meaningful appellate review.
The presumption that judges know the law certainly extends to a presumption that they know a criminal case must be proven beyond a reasonable doubt. There is a strong inference that the burden of proof has been met where the accused’s testimony has been clearly rejected as not credible and the accused is convicted.
Sheppard reminds an appellate court that it is « not given the power to intervene simply because it thinks the trial court did a poor job of expressing itself.
 It is true that the trial judge did not explicitly state at the end of his credibility analysis that the accused’s evidence left him without reasonable doubt. However, this is not a requirement at law. The judge’s reasons must simply be sufficient to support meaningful appellate review (R. v. Sheppard, 2002 SCC 26 at para. 55 [Sheppard]).
 The judge’s reasons meet this standard. He explained that he found the accused’s testimony “erratic, inconsistent and internally contradictory” and went on to give specific examples.
 Sheppard gives examples of cases that may, by nature, require more detailed reasons. This was not one of them. It did not involve “troublesome principles or unsettled law” or “confused and contradictory evidence on a key issue” (Sheppard at para. 55). Two accounts were put before the trial judge respecting whether the complainant had consented. The trial judge had reasons to reject large portions of the accused’s evidence. The reasons showed “why the trial judge [was] left with no reasonable doubt” (Dinardo at para. 26).
 Again, W.(D.) does not create a requirement that the trial judge explicitly state they have been left without reasonable doubt when this is apparent from their analysis. The presumption that judges know the law certainly extends to a presumption that they know a criminal case must be proven beyond a reasonable doubt. There is a strong inference that the burden of proof has been met where the accused’s testimony has been clearly rejected as not credible and the accused is convicted:
In Boucher, Charron J. (dissenting in part) stated that when a trial judge rejects an accused’s testimony, “it can generally be concluded that the testimony failed to raise a reasonable doubt in the judge’s mind” (para. 59). Similarly, in R.E.M., McLachlin C.J. stated that “the convictions themselves raise a reasonable inference that the accused’s denial of the charges failed to raise a reasonable doubt” (para. 66).
R. v. Vuradin, 2013 SCC 38 [Vuradin] at para. 27 [emphasis added], citing R. v. Boucher, 2005 SCC 72 and R. v. R.E.M., 2008 SCC 51.
 In Vuradin, the Supreme Court of Canada noted that even “sparse” reasons should not be interfered with if they allow for review. That case also involved a sexual offence where the evidence came from the complainant and the accused’s testimonies. In dismissing an appeal that argued the judge had not sufficiently enumerated his W.(D.) analysis, the Court stated:
The trial judge found the complainant’s evidence compelling, the problems in her evidence inconsequential, and the appellant’s concoction theories speculative. The reasons reveal that the trial judge accepted the complainant’s evidence where it conflicted with the appellant’s evidence. No further explanation for rejecting the appellant’s evidence was required.
At para. 19.
 Sheppard reminds an appellate court that it is « not given the power to intervene simply because it thinks the trial court did a poor job of expressing itself” (at para. 26). I would not accede to this ground of appeal.