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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(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).
(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.
(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(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.
(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.
(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.
486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(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.
COURT OF APPEAL FOR ONTARIO
DATE: 20231214 DOCKET: C69316
Paciocco, George and Dawe JJ.A.
BETWEEN
His Majesty the King Respondent
and
S.C. Appellant
Counsel: S.C., acting in person Chris Rudnicki, appearing as duty counsel Nicholas Hay, for the respondent
Heard: December 5, 2023
On appeal from the conviction entered by Justice Kelly A. Gorman of the Superior Court of Justice, sitting with a jury, on July 26, 2019.
REASONS FOR DECISION
[1] A jury found the appellant guilty of sexual assault. He was sentenced to 42 months’ imprisonment.
[2] The appellant appeals his conviction. With the assistance of duty counsel, he raises one ground of appeal: the trial judge failed to caution the jury on how they could use the complainant’s prior consistent statement.
[3] At the conclusion of the hearing, we advised counsel and the appellant that the appeal was allowed, a new trial was ordered, and that our reasons would follow. These are our reasons.
A. Evidence at Trial
[4] The appellant and the complainant were previously intimate partners. On the night in question, the complainant was home alone drinking wine. At some point the appellant arrived. The complainant testified that in response to his many sexual advances, she told him “no”, “stop”, “get off”, and “I don’t want to have sex with you”. The complainant testified further that the appellant grabbed her and that she tried to pull away from him. She said she was crying and thought she was going to “get sick”. After losing consciousness the complainant awoke to find the appellant on top of and inside of her, thrusting his body against hers. She testified that she did not consent to having sex with the appellant.
[5] The appellant also testified. He denied grabbing the complainant. He said the two began to “make out” on the couch, which led to them having consensual sex. He denied grabbing, holding, or otherwise restraining the complainant and did not recall her ever losing consciousness. The appellant acknowledged that, while they were having sex, the complainant said she was going to “vomit”, but said that he immediately stopped.
[6] The complainant and the appellant communicated with each other the next day. The appellant initiated this exchange by sending the complainant a Facebook message asking whether she wanted to have breakfast with him. The complainant responded, writing: “I didn’t want to have sex with you last night, that’s why I kept saying no”. The appellant did not respond to the complainant’s message.
[7] The complainant, within 24 hours, attended a hospital, where DNA swabs were taken from in and around her vagina. The swabs were sent to the Centre of Forensic Sciences for analysis, which confirmed the presence of semen that contained the appellant’s DNA.
B. The Crown’s closing submissions and the trial judge’s final instructions
[8] During his closing address to the jury, Crown counsel at trial (not Mr. Hay) said this about the complainant’s Facebook message to the appellant:
The most illustrative piece of evidence at this trial, the most telling any only corroborative piece of tangible evidence that reflects the mindset of [the complainant], mere hours after the encounter, is the text message that she sends to [the appellant]. Not only is it word for word consistent with what she describes saying to [the appellant] prior to, during and after the sexual assault, it reveals much about [the appellant] and what happened that evening. At 12:35 p.m. [the complainant] on August 14 th wrote “I didn’t want to have sex with you last night that’s why I kept saying no”. It could not be any more in line with her actions and her words, as described by her from the beginning of the interaction when they entered the house, to the end.
[9] In our view, the trial Crown was plainly inviting the jury to reason that because the complainant’s message mirrored her evidence at trial, her allegation was more likely to be true.
[10] Not only did the Crown ask the jury to find that the complainant’s prior consistent statement corroborated her testimony, but it also asked the jury to infer that the appellant’s decision to not respond to the complainant’s message is behaviour consistent with his guilt. Or, put another way, that by not responding to the complainant’s message, the appellant was implicitly accepting that what she wrote was true:
[The appellant] was not confused at all by the wording of that message. It could not have been spelled out any clearer. Yet, [the appellant] initially agreeing with me that the message meant that she was accusing him of forcing sex upon her, immediately, and again, this is up to your memory of the trial, immediately thereafter he refuses to acknowledge that he interpreted the words on the page that way. He indicated he didn’t know what she meant by this and it caused him confusion and he was dumb founded I believe was the word that he used.
If he’s so confused by this message, an expected reaction would be to reach out to that person, who you just had a sexual encounter the night before, and ask what do you mean[?] What are you talking about? … I submit a reasonable person acting in a commonsense way, would have at least tried to clarify this gross accusation toward them.
[11] The Crown did not apply for a ruling that the prior consistent statement was admissible, nor did it apply for a ruling on its proposed presentation and use of after-the-fact conduct evidence. The appellant’s counsel did not raise any objection when this evidence was adduced. There was no discussion at the pre-charge conference about what use could or could not be made of the complainant’s prior consistent statement in her Facebook message, nor did the appellant seek a corrective instruction after the Crown’s closing submissions.
C. The trial judge erred by not instructing the jury on how it could use the complainant’s prior consistent statement
[12] The Crown accepts that the trial judge should have provided a limiting instruction about the permissible and impermissible uses of the complainant’s prior consistent statement, but says that in the circumstances of this case there was no realistic risk that the jury would misuse this evidence. We disagree, for two reasons.
[13] First, we are not persuaded that there was no real risk of the jurors improperly treating the complainant’s prior consistent statement as supporting the truth of her testimony or as corroborating her allegations. Indeed, Crown counsel at trial had invited them to draw these inferences, which as we will explain below, are impermissible in law. Second, even if the Facebook message was potentially admissible as after-the-fact conduct to support a different, and legally permissible, chain of reasoning, the Crown did not seek an admissibility ruling at trial, and the trial judge did not instruct the jury about the permissible and impermissible uses of the prior consistent statement evidence.
Prior Consistent Statement
[14] Prior consistent statements by witnesses are presumptively inadmissible. This is so for several obvious reasons, including the fact that they are hearsay, but also because they are a form of oath-helping which will, if a jury is not properly instructed, encourage the jurors to treat the repetition as a “badge of trustworthiness”: R. v. D.K., 2020 ONCA 79, 384 C.C.C. (3d) 405, at para. 35; R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, at para 25. It is impermissible for triers of fact to reason that a prior consistent statement corroborates in-court testimony or that consistency enhances credibility: Khan, at para. 41. A prior consistent statement cannot corroborate in-court testimony since it is not independent proof, coming as it does from the same source as the testimony. Moreover, repetition does not “enhance the value or truth of the testimony”: R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19, at para. 31. Lies or innocent errors can be repeated as readily as the truth can be repeated. The Crown directly invited the jury to engage in “prohibited inferences”.
[15] There are exceptions to the prohibition against admitting prior consistent statements, including: 1) to rebut an allegation of recent fabrication, 2) to establish prior eyewitness identification, 3) to prove recent complaint, 4) to provide evidence of the emotional state of the complainant or witness, and 5) to adduce facts as part of the narrative: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5; R. v. Bagherzadeh, 2023 ONCA 706, at para. 26.
[16] However, even when a prior consistent statement is admissible under one of these exceptions or on some other proper basis, it must “almost always” be accompanied by a limiting instruction to prevent the evidence from being used for impermissible purposes: Ellard, at para. 42. As Watt J.A. explained in R. v. J.A.T., 2012 ONCA 177, 290 O.A.C. 130, at para. 50:
A judge presiding over a criminal jury trial has a duty to ensure that only relevant, material and admissible evidence gets before the jury: R. v. B.(F.F.), [1993] 1 S.C.R. 697, at pp. 735-736; R. v. Hawkes (1915), 25 C.C.C. 29 (Alta. S.C., A.D.), at p. 34. Further, where evidence of limited admissibility is received, the presiding judge has an obligation to instruct jurors about the permitted and prohibited use of that evidence: B.(F.F.), at pp. 733-734; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 184; R. v. Largie, 2010 ONCA 548, 101 O.R. (3d) 561, at paras. 106-197. Where inadmissible evidence seeps into a criminal jury trial, the trial judge should instruct the jury in such a way to ensure that the evidence is not missed in the jury’s decision-making: R. v. A.(J.) (1996), 112 C.C.C. (3d) 528 (Ont. C.A.), at p. 537.
[17] The trial judge failed to give a limiting instruction. Here, the lack of a limiting instruction was particularly problematic because Crown counsel at trial drew the jury’s attention to the Facebook message and specifically invited the jurors to use it in an impermissible way, by treating it as the “only corroborative piece of tangible evidence that reflects the mindset of [the complainant]”. In our view, this made it all the more important that the jury be directed about what they could and could not do with this evidence.
[18] The Crown points to the fact that the appellant’s trial counsel did not object to the introduction of the evidence or to the Crown’s closing address, nor raise the need for a limiting instruction as an issue during the pre-charge conference. We accept that the failure to object can sometimes be fatal to an appeal, as it can suggest that the appellant and his or her counsel did not see the point in dispute to be of sufficient importance to be worth raising. In some cases, defence counsel may have had a tactical reason for not objecting, which would weigh further against appellate intervention. However, in the circumstances here, it is difficult to see how his counsel’s failure to object or seek a limiting instruction would have benefitted the appellant. In our view, this was clearly not a tactical decision, but rather an oversight.
[19] Given that the complainant’s credibility was the central issue in this trial, the absence of a limiting instruction was an error of law which requires appellate intervention.
After-the-Fact Conduct Evidence
[20] The Crown submits that the Facebook message might have been properly used by the jury on the basis that the accused’s after-the-fact conduct – namely, his not responding to the complainant’s message – was behaviour consistent with his guilt. That is, the Crown argues that the jury could properly conclude that the appellant did not respond to the complainant’s message because he knew her statement to be true.
[21] The problem with the Crown’s argument is that evidence of after-the-fact conduct by an accused is properly admissible only if it is logically relevant to a live, material issue in the case; its admission does not offend any other exclusionary rule of evidence; and its probative value exceeds its prejudicial effects: R. v. Gaetan, 2023 ONCA 114, at para. 40. The probative value of after-the-fact conduct evidence depends on the specific nature of the conduct, its relationship to the record as a whole, and the issues raised at trial: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 119, per Martin J. (dissenting, but not on this point); R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 42.
[22] In this case, none of the questions governing the admissibility of after-the-fact conduct evidence were answered in the court below. While the appellant does not raise the trial judge’s failure to address these questions as a ground of appeal, if he had, and if an error was found, the remedy would have been to remit the matter back for a new trial so that this issue could be properly litigated. Contrary to what the Crown is effectively asking us to do, it would not be appropriate for us to weigh in on these questions now.
[23] More significantly, even if the evidence of the complainant’s message, and the appellant’s lack of response to it, could properly be used by the jury as after-the-fact conduct evidence, the jury was not instructed that they could only use this evidence in this manner, and that they could not use the complainant’s prior consistent statement to self-corroborate her allegations, as the trial Crown had invited them to do. In other words, even if the evidence did have a proper use in this case, in the absence of any limiting instruction the jury could just as well have used it improperly.
D. Conclusion
[24] The appeal is allowed and a new trial is ordered.
“David M. Paciocco J.A.”
“J. George J.A”
“J. Dawe J.A.”
