Court File and Parties

COURT FILE NO.: CR-20-08129 DATE: 20240105

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – I.F.L. Appellant

Counsel: Bradley Juriansz, for the Crown Richard Litkowski, for the Appellant

HEARD: December 15, 2023

WARNING An order has been made under s. 486.4 of the Criminal Code restricting publication of any information that could identify a complainant or a witness in this proceeding.

Ruling on Summary Conviction Appeal

C. Boswell J.

I. Overview

[1] The appellant appeals his conviction, on May 17, 2022, for the offence of sexual assault.

[2] His appeal is grounded in two principal arguments.

[3] First, he challenges the credibility findings of the trial judge. He asserts that the trial judge failed to take a holistic view of the evidence, failed to come to grips with an alleged motive to fabricate and applied an uneven level of scrutiny to the testimony of the appellant and the complainant.

[4] Second, he challenges a mid-trial ruling made by the trial judge to permit the Crown to cross-examine the appellant on text messages exchanged between the complainant and the appellant in the hours following the alleged sexual assault. The appellant asserts that the ruling resulted in an unfair trial because: (1) the texts had never been disclosed to him; (2) the Crown had undertaken not to use them; and (3) the ruling effectively permitted the Crown to split its case. Moreover, the appellant contends that the trial judge failed to consider his spontaneous reaction, when first accused of wrongdoing, as circumstantial evidence consistent with his innocence.

[5] The appeal is dismissed for the reasons that follow.

The Facts

[6] The facts and circumstances of the case may be briefly stated.

[7] The trial proceeded over five days between April and May 2022. Four witnesses testified: the complainant, her mother, the appellant and one police officer.

[8] The offence allegedly occurred in June 2019. At that time, the appellant and the complainant were separated spouses, though they were still cohabiting in the same home. The complainant’s parents resided in the home with them. The appellant slept in the guest bedroom. The complainant slept in the master bedroom.

[9] On Friday June 21, 2019, the appellant attended a work function at a restaurant. He returned home after midnight. The complainant had already gone to sleep. According to the appellant’s testimony, he arrived home and went to bed. Nothing unusual occurred.

[10] According to the complainant, however, something remarkable did occur - the appellant sexually assaulted her. She testified that the appellant did not go to the guest bedroom when he arrived home. Instead, he came to her room where she was sleeping with the parties’ daughter. She said he appeared intoxicated and she could smell a strong odour of alcohol. She said he made a number of attempts to get into bed with her and to pull off her pyjama bottoms. She eventually pulled him out of the bed and escorted him to the guest room.

[11] The complainant testified that, once in the guest room, the appellant pushed her onto the bed. Though she struggled, he managed to pull down her pyjama bottoms and touch her vagina through her underwear. She screamed for her mother. Her mother came into the guest room and yelled at the appellant and pushed him away from the complainant.

[12] The complainant texted the appellant immediately afterwards, complaining about the incident. She said, “You tried to rape me, I had to scream, call my mom, I was really scared.” The appellant responded by text roughly two hours later, saying, “What are you talking about, I was sleeping at the time after coming home by Uber. Your door isn’t even locked. I came home around 12:30.”

[13] The complainant testified that the next morning she spoke with her mother about the incident. Her mother told her that the appellant had been really drunk, that she should understand his feelings were hurt by the marriage ending, and she should not make a big deal about what happened. She did not report the incident to the police. Instead, she continued with plans to go to Montreal to visit a friend. The appellant drove her to the airport.

[14] The appellant moved out of the matrimonial home in January 2020. In July 2020 an incident occurred during which the appellant blocked the complainant from leaving the house in her car. She was frightened by the confrontation and went to the police. During the course of being interviewed by the police she disclosed the sexual assault that led to the appellant being charged.

The Judgment

[15] The trial judge rendered a 15-page judgment in which he summarized the evidence of the witnesses who testified, set out the positions taken by the parties, and then proceeded with an assessment of the evidence and an analysis of the live issues.

[16] Notably, the trial judge found the appellant’s evidence to be neither credible nor reliable. He found he could place no weight on it and that it did not leave him in a state of reasonable doubt. He then proceeded to assess the complainant’s evidence, paying particular attention to areas identified by the defence as either inconsistent or implausible. He concluded that the complainant was a credible and reliable witness, whose evidence was corroborated on central points by her mother’s testimony.

[17] He was satisfied he said, on the whole of the evidence, that the Crown’s case had been made out to the reasonable doubt standard.

II. Discussion

Issue One: The Trial Judge’s Credibility Assessments

The Parties’ Positions

[18] The appellant argues that while the trial judge identified the areas of concern raised by the defence with respect to the complainant’s credibility and reliability, he dealt with these concerns in only a perfunctory way. In the result, he underemphasized the frailties in the complainant’s evidence and failed to take a holistic view of them. Moreover, he applied a less exacting standard when he approached concerns about the complainant’s evidence as compared to his approach to the appellant’s evidence.

[19] The appellant further argues that the trial judge completely failed to address the defence assertion that the complainant had a motive to fabricate a story about a sexual assault to give her a leg up in family court proceedings, and, more particularly failed to consider how the timing of her complaint tied into that motive.

[20] The Crown contends that this appeal is a classic example of an appellant attempting to relitigate a trial on appeal. In the Crown’s submission, the trial judge conducted a detailed assessment of the credibility and reliability of the evidence of both the complainant and the appellant. He took particular care to address each of the inconsistencies identified by the appellant as well as those aspects of the complainant’s testimony that the appellant characterized as implausible. He reached his conclusions only after expressly considering the evidence as a whole.

[21] In many respects, the Crown submits, the trial judge rejected inconsistencies urged upon him by defence counsel. Notably, he rejected the suggestion that the complainant had an animus towards the appellant rooted in their family court proceedings. Absent a finding of animus, the asserted motive to fabricate evaporated.

[22] The Crown denies that the trial judge applied uneven scrutiny to the evidence of the appellant and the complainant. The simple fact is, the Crown says, the appellant testified in chief that nothing unusual had occurred on the night of the alleged sexual assault. When confronted in cross-examination with the complainant’s text message accusing him of sexual assault, he attempted to explain that such an accusation was not an unusual event because the complainant, he said, regularly accused him of various wrongdoing, including rape. His evidence on this point, the Crown says, was simply incredible and was the principal driver in the trial judge’s rejection of his testimony.

The Governing Principles

[23] Appellate courts have repeatedly stressed that credibility findings are the province of the trial judge and attract significant deference on appeal. See R. v. G.F., 2021 SCC 20, at para. 99. It is not enough that a court, on appeal, may have a different opinion of the evidence than the trial judge. “A trial judge’s assessment of the credibility of a witness will not be disturbed unless it can be demonstrated that he [or she] committed a palpable and overriding error.” See R. v. Gagnon, 2006 SCC 17, at para. 10.

[24] The deference afforded to trial judges’ credibility findings is grounded in the fact that the trial judge has the “overwhelming advantage of seeing and hearing the witness – an advantage that a written transcript cannot replicate.” See R. v. N.S., 2012 SCC 72, at para. 25.

[25] Appellate courts have similarly repeatedly recognized that an assertion of uneven scrutiny is a “notoriously difficult ground of appeal to succeed on.” See R. v. Kiss, 2018 ONCA 184, at para. 83. The Court of Appeal very recently re-affirmed the high threshold for establishing uneven scrutiny in R. v. S.K., 2023 ONCA 733 where they held, at para. 46, citing R. v. Chanmany, 2016 ONCA 576, at paras. 26-28:

We begin with an observation repeatedly made in the jurisprudence of this court. This “uneven scrutiny” argument is one that is difficult to make successfully. It is difficult because credibility findings are the province of the trial judge and attract a very high degree of deference on appeal. And it is difficult because appellate courts view this argument with scepticism, regarding it as little more than a thinly-veneered invitation to reassess on appeal the credibility determinations made at trial.

An appellant who advances an “uneven scrutiny” argument must do more than show that a different trial judge could have assessed credibility differently. Nor is it sufficient to demonstrate that the trial judge failed to say something he or she could have said in assessing the credibility of the witnesses who gave different accounts of various events. Equally inadequate is the submission that the trial judge failed to expressly articulate legal principles relevant to the credibility assessment.

Appellate success on an argument of uneven scrutiny is achieved only by those who can point to something in the trial judge’s reasons, or elsewhere on the record, that demonstrates that the trial judge had applied different standards in assessing the competing versions. [Citations omitted.]

Analysis

[26] I have reviewed the trial transcripts and the trial judge’s reasons for judgment. I see no error in his assessment of the evidence of the complainant.

[27] It is not incumbent upon a trial judge to resolve every inconsistency in a witness’s testimony. See R. v. A.M., 2014 ONCA 769. Nevertheless, in this instance, the trial judge carefully considered each area of alleged inconsistency and each area of alleged implausibility. I do not find his treatment to have been perfunctory. In my view, he conveyed his findings efficiently and adequately addressed each of the concerns raised by the defence.

[28] The trial judge squarely addressed the assertion of animus and the alleged motive to fabricate. He expressly found that there was no evidence of animus. And he rejected the suggestion that the complaint to the police was a fabrication to gain advantage in a family law proceeding. The record, in my view, supports those conclusions.

[29] The trial judge found the complainant’s mother to have been a credible and reliable witness. There is no basis in the record to interfere with that finding. Her evidence provides significant corroboration on central parts of the complainant’s testimony. Specifically, that an incident did happen between the complainant and the appellant on the occasion in question; that her daughter cried out for help; that she was in the guest room; and that the appellant was attempting to remove her clothes. It was open to the trial judge to rely on that evidence as he did.

[30] I similarly find no basis upon which to interfere with the trial judge’s assessment of the appellant’s evidence. I do not accept the appellant’s suggestion that the trial judge focused more on his demeanour than the substance of his evidence.

[31] The principal reason the trial judge rejected the appellant’s evidence as incredible and untrustworthy is found at paras. 26-35 of his reasons. He noted that the appellant was confronted in cross-examination about the complainant’s text message accusing him of attempting to rape her. He admitted receiving it, then attempted to reconcile it with his evidence in chief that nothing remarkable had occurred that evening. The trial judge found his testimony to be a “tangled web” of internally inconsistent and illogical evidence.

[32] I find the trial judge’s conclusions about the appellant’s evidence to be not only available but entirely justified on this record.

[33] Finally, I do not accept the suggestion that different standards of scrutiny were applied in the assessment of the complainant’s and the appellant’s evidence. That assertion is simply not borne out in the record.

[34] The first ground of appeal fails.

Issue Two: The Trial Judge’s Treatment of the After-the-Fact Text Messages

[35] Some additional detail will be helpful to put the issues surrounding the text messages into context.

The Texts

[36] When the complainant first went to the police, she was interviewed by Detective Constable Amanda Murray. The interview was video-recorded.

[37] In the course of the interview, the complainant passed her cell phone to DC Murray to show her certain screen shots she had made of the texts exchanged between her and the appellant following the assault, the contents of which I set out earlier. DC Murray read the texts out loud.

[38] DC Murray did not, however, seize the complainant’s phone. Its contents were never extracted. Copies of the text messages were not obtained by the police, not provided to the Crown, and not disclosed to the appellant.

[39] Having said that, the appellant received a copy of the complainant’s video-recorded statement by way of disclosure. He was, accordingly, aware of the content of the text messages read aloud by DC Murray.

The Purported Undertaking

[40] On April 11, 2022, a little more than a week before the trial commenced, the appellant’s trial counsel emailed the trial Crown and asked if the text messages referred to in the complainant’s statement had been disclosed in any other form. The trial Crown responded within about 15 minutes and indicated that the texts had not been seized by the police. He added the following:

As an aside, I don't think they would be overly helpful to either of us. I would not be able to adduce the complainant’s message as it would be oath helping, and you would not be allowed to adduce your client’s statement through either the complainant or your client for the same reason. But that's just my two cents.

[41] The Crown did not attempt to adduce the text messages in its case in chief.

The Proposed Cross-examination on the Texts

[42] The appellant chose to testify in his own defence. As I noted, he testified in direct examination that nothing unusual occurred on the occasion in question. He went out. He came home. He went to bed. He denied that the alleged sexual assault occurred.

[43] In cross-examination the Crown sought to question the appellant about the text messages. Two purposes supported the Crown’s proposed line of questioning. First, to impeach the appellant’s testimony that nothing unusual had happened. The suggestion being, of course, that it would be unusual for one spouse, even a separated spouse, to accuse the other spouse of sexual assault. Second, to respond to the assertion, implied or express, of recent fabrication.

The Objection

[44] The appellant’s trial counsel immediately objected to the proposed line of questioning. He took the position that the texts had never been disclosed, that the Crown had undertaken not to introduce them, and that the Crown was attempting to split its case, resulting in unfairness to the appellant.

The Ruling

[45] The trial judge heard argument from both counsel and recessed to consider the matter. After a relatively brief pause, he returned with a short ruling in which he permitted the Crown to proceed with its cross-examination on the texts. In short, he found that:

• The Crown could not have adduced the texts in its case in chief, given that they constituted prior consistent statements;
• Crown counsel had not undertaken not to call the evidence. He merely offered his view as to why neither party could tender the evidence in chief;
• The appellant’s evidence in chief altered the landscape. It infused the texts with a relevance they had not previously had; and,
• The Crown was not splitting its case. Evidence that was not relevant had become relevant. The Crown was gaining no unfair advantage but rather responding to the evidence as it had developed during the case.

[46] The trial judge’s ruling was provided at the end of the day on April 22, 2022. When the case next resumed, on May 5, 2022, the appellant’s trial counsel urged the court to conduct a further voir dire on the admissibility of the text messages. He argued that the evidence of the texts was not the “best evidence” of them but only secondary evidence. In the circumstances, they required authentication. He renewed his assertion that the Crown was case-splitting.

[47] The trial judge heard brief submissions from both counsel and ruled that he would not revisit the ruling he had made on April 22, 2022.

The Parties’ Positions

[48] The appellant raises the same arguments on appeal that he did before the trial judge. He says the trial judge erred in permitting the Crown to cross-examine him on the text messages because: (1) they had not been disclosed to him; (2) the Crown had undertaken not to use them; and (3) the Crown was splitting its case.

[49] The appellant adds two further arguments.

[50] First, he submits that the trial judge erred in not conducting a voir dire to consider the admissibility of the texts. He says he was foreclosed from advancing further arguments about a lack of authentication of the texts and of the fact that he was not asserting recent fabrication but only fabrication in general.

[51] Second, he submits that even if the trial judge did not err in permitting cross-examination on the texts, he erred in not considering the appellant’s reply to the assertion of an attempted rape, as circumstantial evidence supporting the presumption of innocence.

[52] The Crown takes the position that there was no unfairness to the appellant in the manner in which the content of the texts came into evidence. That content had been disclosed, the Crown says, in the course of the complainant’s police interview. The appellant knew the texts existed and he knew their content.

[53] In the Crown’s submission, no blanket undertaking had been given not to tender the texts in evidence. There was nothing unfair about the Crown referring to them after the appellant had made them relevant by his evidence in chief. He should not be shielded from cross-examination on text messages that he knew existed when he gave evidence that nothing unusual had occurred on the occasion in question.

[54] The appellant, the Crown contends, was the author of his own misfortune.

Analysis

[55] I intend to address each of the appellant’s concerns with respect to the texts in turn, though slightly out of the order in which they were presented. I begin with the assertion of a lack of disclosure.

The Texts Were Disclosed

[56] In my view, disclosure is a non-issue. The actual text messages were never seized. The Crown had no obligation to obtain them and produce them. The content of the particular texts in issue was disclosed, given that the texts were read into the complainant’s video-recorded statement by DC Murray.

[57] The Crown’s disclosure obligations are designed to meet the accused’s constitutional entitlement to know the case he has to meet and to make full answer and defence to that case. See R. v. Bottineau, [2005] O.J. No. 4034, at para. 31. The appellant had sufficient disclosure of the texts in issue to understand the case he had to meet and to make full answer and defence to it.

There Was No Undertaking Not to Use the Texts in Evidence

[58] The trial judge reviewed the email correspondence between Crown and defence counsel and concluded, correctly in my view, that the Crown had not given an undertaking not to refer to the texts in evidence. The Crown indicated that it did not intend to introduce the texts in its case in chief, on the basis that they offended the rule against prior consistent statements. The Crown abided by that indication.

The Voir Dire as Conducted was Sufficient

[59] Generally, an accused may not be cross-examined on evidence, the admissibility of which is still to be determined. See, for instance, R. v. Brooks (1986), 28 C.C.C. (3d) 441 (B.C.C.A.) and R. v. Nygard (1989), 51 C.C.C. (3d) 417 (S.C.C.). At the time that the Crown sought to question the appellant about the impugned texts, their admissibility had not yet been determined. Defence counsel was right to object. The complainant’s text, in particular, was presumptively inadmissible as a prior consistent statement. A party seeking to introduce evidence of a prior consistent statement should generally seek a ruling on admissibility prior to tendering such evidence. See R. v. R.M., 2022 ONCA 850, at para. 50.

[60] Following the defence objection, the trial judge entered into a voir dire regarding the propriety of the proposed cross-examination of the appellant on the texts. He was provided with a transcript of the text messages. He was provided with a copy of the email exchange between Crown and defence counsel regarding the texts. And he heard reasonably fulsome argument from both Crown and defence counsel.

[61] The trial judge concluded that the texts were admissible as an exception to the rule against prior consistent statements. Specifically, he found that they were admissible to rebut an allegation of recent fabrication. And he rejected the defence argument that the Crown was attempting to split its case, which is an issue I will come to in a moment.

[62] After the delivery of the trial judge’s reasons, the court broke for the day. It was roughly two weeks before the trial resumed. Upon resumption, defence counsel asked that a further voir dire be conducted. The trial judge refused that request.

[63] The appellant submits that he was, in the result, denied an opportunity to argue that (1) the texts needed to be authenticated; and (2) they were not admissible to rebut an allegation of recent fabrication given that no such allegation had been made.

[64] In my view, the trial judge provided a fair and reasonable opportunity to both sides to make fulsome argument about the admissibility of the text messages. A further voir dire was not required to address the additional issues raised by defence counsel.

[65] With respect to the question of authenticity, I consider it a non-issue. The Crown did not need to authenticate the text messages before asking the appellant, in cross-examination, whether the texts were sent and received. He merely needed a good faith basis for the question, which I find he had. When the question was ultimately put to the appellant, he agreed he received the complainant’s text and he agreed that he responded to it.

[66] With respect to the route of admissibility of the texts, the trial judge ruled that the complainant’s text was admissible to rebut an allegation of recent fabrication, which is a recognized exception to the rule excluding prior consistent statements. In my view, that ruling was correct.

[67] Defence counsel attempted to persuade the trial judge that the defence was not asserting recent fabrication but only fabrication in general. There is authority for the proposition that a bald allegation of fabrication does not amount to an allegation of recent fabrication. See, for instance, R. v. Vassel, 2018 ONCA 721, at para. 124. In my view, however, and despite his assertions to the contrary, the appellant’s position at trial was properly characterized as an assertion of recent fabrication. The suggestion, whether implicit or explicit, was that the complainant went to the police with a fabricated story of a sexual assault to ensure that the appellant could not return to live in the matrimonial home and to aid her in the course of family court proceedings. In other words, the fabrication was triggered by a specific cause or event. In the circumstances, it amounted to an allegation of recent fabrication. See R. v. Kailayapillai, 2013 ONCA 248, at paras. 42-43. The trial judge was correct to hold that his ruling had already addressed that issue.

[68] Having said all of that, I find that the text messages were, in any event, clearly admissible through a slightly different analytical route than that expressed in the trial judge’s ruling. In my view, they were admissible according to the application of the basic rules of admission: relevance, materiality and probative value. See the concurring reasons of Doherty J.A. in R. v. Khan, 2017 ONCA 114, at paras. 59-62.

[69] The Crown was not seeking to introduce the texts for the proof of their contents, nor to bootstrap the credibility of the complainant. The intent was to impeach the credibility of the appellant’s evidence that nothing unusual had happened on the occasion in question. The Crown’s proposition was that receiving a text accusing one of committing a sexual assault is, on its own, a remarkable occurrence.

[70] The complainant’s text was original evidence that stood in stark contrast to the appellant’s testimony that nothing unusual had occurred on the occasion in issue. The impugned texts easily met the requirements of relevance, materiality and probity and were admissible for the purpose identified by the Crown.

[71] In the result, even if the appellant is correct that a further voir dire should have been conducted – a proposition I do not accept – he did not suffer any prejudice because the texts in issue were clearly admissible.

The Crown Did Not Improperly Split its Case

[72] As I alluded to earlier, the basic requirements of admissibility are that the evidence on offer must be relevant, material, not subject to a rule of exclusion, and sufficiently probative to overcome any prejudice that may be associated with the introduction of the evidence. See R. v. Calnen, 2019 SCC 6, at para. 107, per Martin J., dissenting but not on this point.

[73] Three impediments to the admissibility of the impugned text messages were raised by the appellant at trial. I have already addressed the assertion of a lack of disclosure and the assertion that the complainant’s text was inadmissible as a prior consistent statement. The remaining assertion is that the text messages were not admissible on the basis that they amounted to case splitting by the Crown.

[74] The general rule in criminal trials is that the Crown must present all of the evidence in its possession, upon which it relies as proof of guilt, before closing its case. Only then will the accused be called upon to make an election to call evidence or testify. See R. v. Campbell (1977), 17 O.R. (2d) 673 (C.A.) at p. 693. This rule prevents the accused being taken by surprise. It protects the accused’s right to make full answer and defence, the right of accused persons not to be conscripted against themselves, and the right to a fair trial. See R. v. G. (S.G.), [1997] 2 S.C.R. 716, at para. 38.

[75] The Supreme Court described the general rule in R. v. Chaulk, [1990] 3 S.C.R. 1303, at para. 118, citing R. v. Drake (1970), 1 C.C.C. (2d) 396 at p. 397:

There is a well‑known principle that evidence which is clearly relevant to the issues and within the possession of the Crown should be advanced by the Crown as part of its case, and such evidence cannot properly be admitted after the evidence for the defence by way of rebuttal. In other words, the law regards it as unfair for the Crown to lie in wait and to permit the accused to trap himself. The principle, however, does not apply to evidence which is only marginally, minimally or doubtfully relevant.

[76] There are two recognized exceptions to the general rule. The first is an application by the Crown to re-open its case. No such application was made in this instance. The second, arguably applicable here, was a request by the Crown to call reply evidence. Reply evidence is admissible where the issue to which the evidence is directed arose out of the defence case, where it is not collateral and where the Crown could not have foreseen its development. See R. v. G. (S.G.), [1997] 2 S.C.R. 716, at para. 39.

[77] The appellant asserts that the Crown ought to have tendered the impugned texts in its case in chief. He says the texts were arguably admissible as part of the narrative of the timing and circumstances of the complaint to the police.

[78] I do not accept the appellant’s assertion.

[79] To be admissible as pure narrative evidence, the text messages would have to enable the trier of fact to better understand the chronology of events. See R. v. Khan, 2017 ONCA 114, at para. 30. If not essential to the narrative, they would not be admissible. See R. v. M.L., 2021 NBCA 27, at para. 26.

[80] Here, the important chronology of events – in terms of the Crown’s case in chief – was that a sexual assault occurred in June 2019 and a complaint was made to the police about it in July 2020. Evidence of the complaint (a prior consistent statement made to the police) was admissible in the Crown’s case in chief as pure narrative because it helped the trial judge understand the fact and context of the complaint.

[81] By contrast, evidence of the text messages exchanged on the night of the alleged assault were not essential to the narrative and, as such, were not admissible as pure narrative in the Crown’s case in chief.

[82] The text messages were used by the Crown in two respects. First, they were raised in the cross-examination of the appellant, for impeachment purposes. Second, they were adduced in reply evidence. Neither use, in my view, amounted to case-splitting.

[83] In my view, the text messages were fair game in cross-examination. The appellant was aware of their existence, given the manner in which they had been disclosed. Moreover, he was a party to their exchange. He testified that nothing unusual happened on the occasion in issue. The texts, which had otherwise not been admissible as part of the Crown’s case in chief, suggested otherwise. He put the texts into play, in terms of their relevance and admissibility, by his direct testimony, and there is no reason why he should have been insulated from questions about them in cross-examination. The Crown had a good faith basis to ask about them.

[84] The texts were also admissible in reply evidence. The relevance, materiality and probity of the texts arose out of the defence case. Evidence of the texts was not collateral because they tended to rebut an implied allegation of recent fabrication. Moreover, the Crown could not have foreseen that the appellant would suggest that nothing unusual happened on the occasion in issue. Accordingly, the texts were fairly adduced in evidence in reply according to the ruling in R. v. G. (S.G.).

[85] Whether it was necessary to adduce evidence of the texts in reply is another matter. It seems to me that the appellant admitted the existence of the texts in cross-examination, so it was probably unnecessary to adduce further evidence about them. That said, no prejudice inured to the appellant by virtue of the reply evidence.

There was no Error in the Application of R. v. Edgar

[86] In R. v. Edgar, 2010 ONCA 529, the Court of Appeal recognized an exception to the rule prohibiting prior consistent statements of an accused person. Specifically, an accused person’s spontaneous utterances when first confronted with an accusation may be admitted as evidence of the reaction of the accused to the accusation and as proof of consistency. Rather than being evidence of the truth of the contents of the utterances, they are circumstantial evidence that may have a bearing on guilt or innocence. See R. v. Reddick, 2021 ONCA 418, at para. 47.

[87] The appellant testified that he responded to the complainant’s text message accusing him of attempted rape immediately after seeing it. He explained that he had not seen it for about two hours after it was sent because he was asleep. In his responding text he expressed surprise that the accusation was made and implicitly denied having assaulted the complainant.

[88] The appellant submits that the trial judge should have considered his spontaneous reaction to the accusation as evidence tending to support the presumption of innocence, yet his reasons are silent on the point.

[89] I agree that the trial judge did not expressly refer to the Edgar exception in his judgment. But that is unsurprising for three reasons.

[90] First, there was no defence application to tender the appellant’s utterances as circumstantial evidence of his reaction when first confronted by the complainant. That said, the trial judge did engage with defence counsel on this issue during closing submissions. He was alive to the position of the defence.

[91] Second, according to the appellant’s testimony, his reaction to the complainant’s accusation was not one of shock or offence that such an accusation had been made. He said these kinds of accusations were a recurring theme with the complainant and not something that alarmed him or made him concerned for his personal liability.

[92] Third, the trial judge spent considerable time reviewing the appellant’s evidence under cross-examination regarding the texts. He concluded, as I noted, that the appellant’s evidence was inconsistent and illogical. He found that the cross-examination regarding the texts showed the appellant to be neither a credible nor a truthful witness.

[93] In the circumstances, I think it was unnecessary for the trial judge to expressly refer to the appellant’s responding text in the context of the Edgar exception. It was clear that he rejected the appellant’s evidence in a profound way.

[94] The second ground of appeal fails.

Disposition

[95] For the foregoing reasons the appeal is dismissed.

C. Boswell J.

Released: January 5, 2024