WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

486.4(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court Information

Court of Appeal for Ontario

Date: 2017-02-03

Docket: C61309

Panel: Hoy A.C.J.O., Doherty and van Rensburg JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Bo Zou Appellant

Counsel

Marie Henein and Christine Mainville, for the appellant

Jill Witkin, for the respondent

Hearing

Heard: November 8, 2016

On appeal from: the conviction entered by Justice Robert F. Goldstein of the Superior Court of Justice, on July 10, 2015, with reasons reported at 2015 ONSC 4479.

Decision

Doherty J.A.:

I. OVERVIEW

[1] The appellant was convicted of sexually assaulting A.Y. The trial judge imposed a sentence of two years, less one day. The appellant appeals conviction only.

[2] The appellant advances three grounds of appeal. The first raises the often vexing question of the evidentiary use that can be made of a complainant's prior consistent statement. Shortly after the alleged assault, A.Y. sent an anonymous email to the police in which she said she had been sexually assaulted by the appellant. Her description of the assault was consistent with her trial testimony. In his reasons, the trial judge relied on the email as "corroboration" of A.Y.'s testimony. The appellant submits that although the email was admissible for a limited purpose, it could not, as a matter of law, corroborate A.Y.'s evidence.

[3] I agree with this submission and would allow the appeal. I would not give effect to the other arguments and do not propose to address them in these reasons.

II. THE EVIDENCE

(i) The Photo Shoot

[4] A.Y. is from China. In July 2012, she was 18 years old and attending university in Toronto on a student visa. The appellant was 33 years old and working for an IT company. The two met on a social networking app.

[5] A.Y. testified that the appellant described himself in his profile as a photographer. His profile included photographs of young women. A.Y. recognized one of the women as a person she knew from school. In his profile, the appellant offered to provide aspiring models with free photographs.

[6] A.Y. and the appellant exchanged messages. After browsing some of the photographs of other young women on the appellant's profile, A.Y. agreed to meet the appellant at his condo/studio for a photo shoot. On the agreed-to day, A.Y. went to the appellant's condo and waited in the lobby. The appellant arrived about one hour later and they went upstairs to his condo.

[7] The appellant offered A.Y. a drink. She took one and had a few sips. They talked about different things. The appellant presented himself as a well off, sophisticated, talented fashion photographer. A.Y. was not sure whether the appellant was telling the truth about himself.

[8] The appellant expressed some disappointment with the black dress A.Y. was wearing. He intended to photograph her in a style popularized by a famous Japanese photographer. That style called for colourful erotic clothing.

[9] The appellant took two series of photographs of A.Y. In the first series, A.Y. wore the black dress. In the second, she wore a tank top provided by the appellant. Some of the photographs were sexually suggestive. A.Y. testified that the appellant told her how to pose. He testified that A.Y. chose her poses without his input.

[10] After taking two sets of photographs, A.Y. and the appellant sat down on the couch to look through the photographs on his camera. According to A.Y., the appellant attempted to kiss her twice. He also touched her. The appellant assured A.Y. that it was common for photographers and their models to be intimate so that they could gain a better understanding of each other.

[11] A.Y. testified that she repeatedly told the appellant to stop. He eventually stopped and assured her that he would not make any more advances. The appellant invited A.Y. to sit on the side of the bed near the couch. She did so and they talked briefly. The appellant then attacked A.Y., pushing her to the bed and groping her. A.Y. tried to push the appellant away, but she could not overcome his assaults. He eventually removed his clothing and pulled her underwear off. He tried to have sexual intercourse with A.Y.

[12] A.Y. testified that she initially resisted the efforts at sexual intercourse, but then realized that she could not stop him. She asked the appellant to use a condom. He produced a condom and proceeded to have sexual intercourse with A.Y. She did not consent, but instead stopped resisting, realizing that it was futile. After about ten minutes, the appellant stopped. A.Y. fled into the bathroom. She was not sure whether the appellant had used a condom, but she suspected that he had not as she noticed a liquid discharge in her vagina.

[13] A.Y. testified that she was angry and wanted to get away from the appellant. When she left the washroom, the appellant said she should come back to his condo in a few days to get her photographs. Although A.Y. had no interest in the photographs and only wanted to get away from the appellant, she replied, "We'll see."

[14] The appellant escorted A.Y. to a taxi stand near the condo. He was holding her hand as they went through the condo lobby. A.Y. got into a taxi and went straight home.

[15] The appellant gave a very different version of the events following the photography sessions. He testified that when he and A.Y. were sitting on the couch looking at the photographs, A.Y. kissed him. The appellant said he was surprised and shocked. He told A.Y. that he had a girlfriend and reminded A.Y. that she had told him that she had a boyfriend. A.Y. became angry when the appellant rebuffed her advances.

[16] The appellant agreed that before A.Y. left, he invited her to return in a few days to pick up her photographs. He escorted her to a taxi stand outside his condo. He heard nothing about any alleged sexual assault until about 14 months later.

(ii) The Email

[17] A.Y. testified that she was angry when she got home. She blamed herself for foolishly putting herself in a position in which the appellant could take advantage of her. She was so upset that she could not sleep. Early the next morning, A.Y. decided to report the assault by sending an anonymous email to the local police station. A.Y. did not use her regular email address, but instead used one she had registered years earlier and no longer used.

[18] In the email, A.Y. described the appellant's attack on her in some detail. The description was consistent with her trial testimony. She referred to the appellant as Jay – an alias he used online – and provided his phone number. She concluded the email with a request that the police contact her and do something about the assault. A.Y. did not give her name and the only email address available to the police was the one A.Y. used to send the email.

[19] A.Y. sent the email on July 31, 2012, the morning after the alleged assault. The police responded by email on January 10, 2013, about five and one-half months later. According to the police email, no one had checked the mailbox to which A.Y. had sent her email for "a few months". In their email, the police asked A.Y. to come forward and identify herself so that they could investigate the allegation.

[20] A.Y. testified that although she initially checked for responses to her July 31, 2012 email on a regular basis, she stopped doing so after receiving no response from the police. A.Y. had not checked the email for some time when she checked it in August 2013 and found the email sent by the police on January 10, 2013.

[21] A.Y. was with her boyfriend when she read the police email. She became upset and eventually told her boyfriend what had happened. He convinced her that she had to go to the police. She did so and the ensuing investigation led to the appellant's arrest, some 14 months after the incident.

III. THE TRIAL JUDGE'S REASONS

[22] A.Y. and the appellant were the only witnesses at trial. The defence position was that the alleged assault never happened. The defence claimed that A.Y. falsely accused the appellant because he had rebuffed her sexual advances.

[23] The trial judge recognized that the outcome of the trial turned on his assessment of the credibility and reliability of A.Y. and the appellant. He directed himself that he must make his assessment using the well-known three-part analysis described in R. v. W.(D.), [1991] 1 S.C.R. 742.

[24] The trial judge first considered and rejected the appellant's evidence, concluding that it was incredible and did not leave him with a reasonable doubt (at paras. 21-28). The trial judge accepted that the appellant gave his evidence in a straightforward and non-argumentative manner, but ultimately found that "his story does not make sense".

[25] The trial judge turned next to A.Y.'s evidence. He reviewed her testimony and found it credible and reliable (at paras. 29-39). At para. 30, the trial judge set out in bullet point form his reasons for finding A.Y. credible. For convenience, I have numbered the bullet points. The third bullet point is the main focus of this ground of appeal:

[1] • A.Y. readily agreed to factual errors in her testimony both before me and at the preliminary inquiry and explained the reasons for them. She did not argue with counsel, but took her time to try and answer the questions.

[2] • A.Y.'s decision to send an email and not follow up is very consistent with the behaviour of a victim who is ashamed of her own gullibility. Wanting to remain anonymous is common among victims of sexual assault. A.Y. said as much herself. She called herself ignorant. I would use different words. I would say that she was young and naïve.

[3] • Thus most importantly, I find A.Y.'s email, sent contemporaneously with the events, to be corroboration of her evidence.

IV. DID THE TRIAL JUDGE MAKE IMPROPER USE OF A.Y.'S EMAIL TO THE POLICE?

A: References to the Email at Trial

(i) In the Evidence

[26] A.Y.'s email to the police was introduced into evidence during her examination-in-chief. She read the document into the record in its entirety and it was made an exhibit. There was no objection by trial counsel for the appellant and no indication by counsel or the trial judge of the purpose for which the email was tendered or any limitation on its use.

[27] In cross-examination, A.Y. testified that the contents of the email helped refresh her memory on a few details of the encounter with the appellant. A.Y. was cross-examined about the time at which she sent the email and one minor inconsistency between the email and her testimony.

(ii) In the Arguments

[28] Both counsel made reference to the email in their closing arguments. Defence counsel relied on the sending of an anonymous, untraceable email, and the failure to follow-up on the email, to support the position that the allegation was untrue and fabricated by A.Y. as revenge for the appellant's rejection of her advances and as some form of self-protection should her boyfriend or family members find out about the encounter with the appellant.

[29] In his submissions at trial, Crown counsel maintained that A.Y. was a credible and reliable witness. He referred to both the email and A.Y.'s conduct after leaving the condo. He argued that the defence position that A.Y. had made a false accusation to gain revenge or somehow protect herself made no sense in light of the manner in which A.Y. "reported" the assault. Counsel submitted that sending an anonymous email and not following-up on it was a truly bizarre way for a complainant to make a false allegation of sexual assault.

[30] Crown counsel also argued that A.Y.'s version of the incident had been consistent throughout, beginning with the description of the assault in the email and culminating with her testimony at trial:

The night that she returned from his condominium, she wrote in somewhat halting English an account of what happened to her that night in his condominium [the email], which has really, in terms of material facts, has been completely unchanged from the moment she wrote it until the day that she finished testifying here at this trial. She has never wavered. She has been cross-examined at a preliminary inquiry and cross-examined at a trial and she has been consistent in terms of the material and important elements of what occurred that night. [Emphasis added.]

(iii) In the Reasons

[31] The trial judge referred to the email six times in his reasons. He first averted to it in his overview of the case at the beginning of the judgment. The second and third references to the email appear at paras. 16 and 17, when the trial judge is summarizing A.Y.'s evidence. The relevant portion, at para. 16, reads:

The email went on to describe the sexual assault in some detail. It did not differ in any significant way from the evidence that [A.Y.] gave at this trial.

[32] The trial judge refers to the email for a fourth time when he is explaining his reasons for rejecting the appellant's evidence. In the course of examining the defence submission that A.Y. had falsely accused the appellant because she was angry with him after he rejected her, the trial judge said, at para. 25:

Most importantly, the idea that A.Y. decided to go to the police and claim she was sexually assaulted because [the appellant] spurned her makes no sense given how her contact with the police developed. She deliberately hid her identity and then did not pursue the matter when the police did not respond instantly. She only went to the police when her boyfriend insisted. Her behaviour was inconsistent with a desire to see [the appellant] arrested and charged. Her behaviour was much more consistent with that of a sexual assault victim who was embarrassed than with a woman spurned and seeking revenge. Obviously, [the appellant] is not responsible for A.Y.'s behaviour, but in the context of these facts the defence theory does not make sense.

[33] The fifth and sixth references by the trial judge to the email appear in the paragraph in which he sets outs his reasons for finding A.Y. credible. The paragraph is set out at paragraph 25 of these reasons. For convenience, I will repeat the two bullet points that refer to the email:

[2] • A.Y.'s decision to send an email and not follow up is very consistent with the behaviour of a victim who is ashamed of her own gullibility …

[3] • Thus most importantly, I find A.Y.'s email, sent contemporaneously with the events, to be corroboration of her evidence.

B: The Trial Judge's Uses of the Email in His Reasons

[34] At para. 25 of his reasons, the trial judge used the evidence that A.Y. sent an anonymous email to the police complaining about the assault in considering and rejecting the defence submission that A.Y. had falsely accused the appellant because she was angry when he rejected her sexual advances.

[35] Ms. Henein, for the appellant, accepts that the email could be used to undermine the defence position as to the motive for A.Y.'s false accusation. Used in this way, the email is a relevant piece of circumstantial evidence that, placed in the context of the rest of the evidence, makes the existence of the reason advanced by the defence for A.Y.'s false allegation more or, as the trial judge found, less likely. The truth of the contents of the email is irrelevant to this evidentiary use.

[36] The trial judge used the email in a second way that is very closely related to the first. In bullet point [2], the trial judge reasoned that A.Y.'s decision to send an anonymous email to the police and her failure to follow-up on that email were consistent with her evidence that she was angry, confused and "ashamed of her own gullibility" after the incident. In the trial judge's assessment, the sending of the email and the failure to follow-up was conduct that was consistent with A.Y.'s testimony about her state of mind after the incident. As with the first use of the email, the truth of the contents of the email was irrelevant to this evidentiary use.

[37] In my view, this second use of the email is indistinguishable for evidentiary purposes from the first. In both instances, the email is treated as a piece of circumstantial evidence relevant to a fact in issue. The trial judge's finding that A.Y.'s conduct in respect of the email and its aftermath was consistent with A.Y.'s description of her state of mind necessarily impacted the trial judge's assessment of her credibility in a positive way: see R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at paras. 11-12.

[38] If the trial judge used the email evidence only for the two purposes described above, this ground of appeal would fail. The appellant submits, however, that the trial judge went beyond those two uses. He refers to the trial judge's description of the email as "corroboration of [A.Y.'s] evidence" in bullet point [3] as demonstrating that the trial judge used the contents of the email as evidence of the truth of the allegations in the email, and used the consistency between the contents of the email and A.Y.'s testimony to confirm her testimony. The appellant relies heavily on R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 40, in which the court held that a trial judge's reference to a prior consistent statement as "a form of corroboration" of the complainant's evidence constituted reversible error: see also R. v. Lopez, 2015 BCCA 294, at para. 35.

[39] Ms. Witkin, for the Crown, does not suggest that the email was admissible for the truth of its contents. Nor does she argue that the consistency between the contents of the email and A.Y.'s trial testimony can confirm the truth of A.Y.'s evidence. Ms. Witkin contends that the trial judge did not use the email for any purpose other than the two legitimate purposes described earlier in these reasons. She submits that the second and third bullet points must be read together as describing a single use of the email as circumstantial evidence to rebut the defence position with respect to A.Y.'s motive for reporting the incident and to support the complainant's evidence as to her state of mind when she left the condo. Crown counsel points to the word "thus" at the start of the third bullet point as providing the bridge joining the second and third bullet points.

[40] The trial judge's use of the word "corroboration" in the context of a prior consistent statement by a witness is troubling. That word, as commonly understood, refers to evidence from a source other than the witness whose evidence is challenged which is capable of confirming the veracity of the evidence of the challenged witness: see Vetrovec v. The Queen, [1982] 1 S.C.R. 811, at p. 829; R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328, at paras. 12-15; and R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at paras. 37-40.

[41] The email evidence did not have either characteristic required for evidence to be corroborative. It was not from a source independent of A.Y. Nor could the email confirm the veracity of A.Y.'s trial testimony unless the email was improperly used for the truth of its contents, or the consistency between the email and A.Y.'s testimony was improperly viewed as confirmatory of her trial testimony. If, as the appellant submits, the trial judge used the word "corroboration" as it is customarily used in the law of evidence, he erred in law in treating the email as corroborative.

[42] Appellate review of a trial judge's reasons does not, however, focus on individual words considered in isolation from the rest of the reasons or the entirety of the trial proceedings. Words take their meaning from the context in which they are used. In a criminal case, context includes the evidence led, the arguments made, and the rest of the trial judge's reasons. What might appear to be a judicial misstep, or an ambiguity in the language used in the reasons, is often clarified after a careful review of the whole of the reasons read in the context of the entirety of the proceedings: see Stirling, at paras. 13-14; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 19; and R. v. B.A., 2008 ONCA 556, 238 O.A.C. 198, at paras. 33-34, leave to appeal refused, [2008] S.C.C.A. No. 415. A proper contextual reading of the reasons will sometimes demonstrate that the trial judge used the word "corroboration" in a more limited sense than it is typically used: see e.g. R. v. G.M., [2000] O.J. No. 5007 (Ont. C.A.), at para. 2; R. v. R.M., 2014 ONCA 785, 317 C.C.C. (3d) 145, at paras. 69-76; and R. v. Luceno, 2015 ONCA 759, 331 C.C.C. (3d) 51, at para. 58.

[43] My review of the entirety of the reasons, considered in the context of the trial as a whole, reveals nothing that would support the claim that the trial judge meant to use the word "corroboration" in some way other than in its normal sense. There is no express indication by the trial judge or either counsel, at any point in the trial, that they understood that the email could not be used for the truth of its contents or to support A.Y.'s credibility because its contents were consistent with her testimony. Unlike some of the cases referred to by Crown counsel, the trial judge's use of the word "corroboration" is not clarified or modified by any other comment made by him in his reasons or anywhere else in the trial proceedings.

[44] Crown counsel on appeal argued that an exchange between counsel for the accused and the trial judge during the defence's closing submissions demonstrated that the trial judge appreciated that the email was not admissible for the truth of its contents. I do not read the exchange in that way. As I read it, the trial judge was simply indicating that he did not regard the sending of the email by A.Y. as necessarily inconsistent with the truth of her allegations. I do not think that the comment says anything about the trial judge's understanding of the evidentiary use that could be made of the email or its contents, or any limits on that use.

[45] To the contrary, to the extent that counsel's submissions shed light on how the trial judge may have used the email, one of Crown counsel's submissions invited a misuse of the email. Crown counsel argued that the consistency in A.Y.'s description of what happened from her first telling in the email to her testimony supported her credibility. He emphasized that A.Y. "never wavered."

[46] If the trial judge accepted this argument, and he did refer to the consistency between the content of the email and A.Y.'s trial testimony in his reasons (see para. 16), he misused the email to buttress A.Y.'s credibility by virtue of the consistency between the content of the email and her testimony. This misuse of the email is arguably reflected in the trial judge's description of the email as corroborative, that is, confirmatory of A.Y.'s testimony.

[47] I also cannot agree with Crown counsel's reading of bullet point [2] and bullet point [3] as referring to a single evidentiary use of the email. The potential ambiguity introduced by the word "thus" does not outweigh the other indicators demonstrating that the trial judge used the email for a different and improper purpose in the third bullet point. The trial judge saw fit to refer to each in a separate bullet point. The structure of the relevant paragraph strongly suggests that the trial judge saw the email as providing two separate bases for finding A.Y. credible.

[48] The language used in bullet point [2] compared with the language used in bullet point [3] confirms that the trial judge used the email for two different purposes. In bullet point [2], the trial judge referred not to the email itself, but to the sending of the email and the failure to follow-up on the email with the police as conduct that was consistent with one specific feature of A.Y.'s evidence – her description of her state of mind after the incident. The actual content of the email was clearly irrelevant to this analysis.

[49] In bullet point [3], the trial judge refers to the "email sent contemporaneously with the events" as corroborating A.Y.'s testimony, without any reference to a specific part of her testimony. Bullet point [3] reflects a broader use of the email itself as confirmatory, not of a specific aspect of A.Y.'s testimony, but of her testimony as a whole. This broader use of the email to confirm A.Y.'s credibility in a general sense is exactly the manner in which evidence which fits the generally accepted meaning of corroboration works to enhance the credibility of a witness. The language of bullet point [3] indicates to me that the trial judge gave the word "corroboration" its generally accepted meaning.

[50] Lastly, I consider the submission that a trial judge is assumed to know the law and that any ambiguity in the language used by the trial judge should, by force of that assumption, be resolved in favour of an interpretation of the reasons that is consistent with the applicable law. No doubt, trial judges are assumed to be alive to the relevant legal principles. That assumption, however, operates when there is a true ambiguity in the trial judge's reasons. Having considered these reasons as a whole, I do not see any ambiguity in the trial judge's declaration that the email was corroborative of A.Y.'s testimony. I think he meant that it confirmed A.Y.'s testimony. In law, it could not have that effect. I would add, that it would be somewhat ironic to resort to the assumption that a trial judge knows the law to interpret the word "corroboration" in a manner that is contrary to the accepted meaning of the word in the legal lexicon.

V. CONCLUSION

[51] The trial judge erred in law in holding that the email was corroborative of A.Y.'s evidence. The Crown, correctly in my view, does not argue that the curative proviso can be applied to this error. I would allow the appeal, quash the conviction, and order a new trial.

Released: February 3, 2017

"Doherty J.A."

"I agree Alexandra Hoy A.C.J.O."

"I agree K. van Rensburg J.A."