R. v. Bryan, 2024 ONSC 3497

Court File No.: CR-23-30000605-0000 Date: 2024-06-20

Ontario Superior Court of Justice

Between: Marcus Bryan, Applicant / Respondent And: His Majesty The King, Respondent / Applicant

Before: Pinto J.

Counsel: Maria Rosa Muia, for Marcus Bryan Brigid McCallum, for the Crown

Heard: April 29, 30 and May 1, 2024

Rulings on Pre-Trial Applications (Applicability of s. 276, Res Gestae, CCTV)

Overview

[1] The applicant is charged with a number of offences including human trafficking, firearm offences, kidnapping and uttering a threat in relation to the complainant AAP.

[2] A judge-alone trial is set to commence on January 20, 2025.

[3] On April 29, 30 and May 1, 2024, I heard arguments with respect to three pre-trial applications:

a) A Defence application for an order that the s. 276 regime under the Criminal Code does not apply to cases of human trafficking or, in the alternative, for an order permitting the applicant to cross-examine the complainant regarding her past sexual history.

b) A Crown application that a recording of a 911 call by the complainant, and statements made by the complainant to her aunt at the time of the 911 call, be admitted into evidence under the res gestae exception or some other exception to the hearsay rule; and

c) A Crown application that the complainant be permitted to testify at trial by CCTV pursuant to s. 486.2(2) of the Criminal Code.

[4] On June 10, 2024:

a) I provided my ruling and oral reasons for decision for the CCTV application. I allowed the Crown’s CCTV application and advised the parties that I would provide a copy of my written reasons in due course. This decision contains those written reasons.

b) I provided my bottom line ruling with respect to the Crown application concerning the 911 call and associated statements of the complainant. I allowed the Crown’s application, in part, by finding that the 911 call was admissible. However, I found that it was premature to decide on the admissibility of the complainant’s other statements made at the time of the 911 call. I ruled that the Crown was entitled to renew its application before the trial judge and that a voir dire could be held as determined by the trial judge. The within decision also contains my reasons for the 911 call related ruling.

c) Finally, given that the Court of Appeal has been sitting in reserve since December 2023 on one of the issues that is before me, namely whether the s. 276 regime applies to the offence of human trafficking, I declined to rule on that issue. Instead, I directed the parties to return before me on September 3, 2024, at which time I would receive submissions on next steps depending on whether the Court of Appeal has released its decision. Finally, recognizing that counsel and the court’s fall 2024 schedule is quickly filling up, I directed counsel to attend practice court on June 17, 2024 to schedule a return date of October 30, 2024 (or so soon thereafter as possible) for a s. 276 hearing in case one is needed in advance of the January 25, 2025 trial date.

[5] What follows are my reasons for decision in respect of the Crown’s two applications.

The Nature of the Case

[6] The accused was arrested and charged on April 20, 2022 with a number of offences in relation to the complainant. On the preferred indictment, the following 12 charges remain:

Count 1 – Human trafficking, contrary to s. 279.01.

Count 2 – Receive a financial or other material benefit from human trafficking, contrary to s. 279.02(1).

Count 3 – Remove a travel or identity document for the purposes of human trafficking, contrary to s. 279.03(1).

Count 4 – Procuring or exercising control, contrary to s. 286.3(1).

Count 5 – Receive a financial or other material benefit from sexual services, contrary to s.286.2(1)

Count 6 – Advertising another person’s sexual services, contrary to s. 286.4.

Count 7 – Uttering threat to cause death or bodily harm, contrary to s. 264.1(1)(a)

Count 8 – Possession of a weapon, contrary to s. 88(1)

Count 9 – Use a handgun while committing an indictable offence, contrary to s. 85(1)(b)

Counts 10 and 11 – Kidnapping, contrary to s. 279(1)(a)

Count 12 – Robbery, contrary to s. 344(1)(b)

[7] The complainant provided two videotaped statements to the police on March 1, 2021 and March 31, 2021.

[8] The complainant alleges that she met the accused sometime in July 2020 through Tinder. The complainant told police that she had met the accused for a simple ‘hook up’ but that they continued to go on several dates; that at some time in the summer of 2020, she and the accused worked together (in the sex trade) for one week before the complainant left due to the accused being controlling; that the accused found her in the fall or winter 2020 by setting up a fake date (sexual service appointment) with her after locating one of her ads; that the accused (a black male) used a white male to identify himself at the door so the complainant would let him in and then proceeded to threaten her with a gun and forced her to provide sexual services against her will; that the complainant made $50,000 during this time; and that the complainant escaped and continued to work independently for some time.

[9] Further, the complainant alleges that on February 28, 2021, the accused found her, and took her with an unknown female in a white BMW SUV to the Niagara Falls area and forced her to provide sexual services against her will until the next morning on March 1, 2021. While driving to Niagara Falls, the accused allegedly used the complainant’s phone to create a new Leo List ad and the unknown female responded to and set up appointments with prospective clients. The complainant made $600 and gave the money to the accused and unknown female. The accused and unknown female brought the complainant home, at which point the complainant’s aunt and cousin intervened and called police.

[10] At trial, it is anticipated that the Defence will argue that the complainant told the accused that she worked in the sex trade when they first met; that the complainant and the accused engaged in a casual sexual relationship; that the accused received fellatio from the complainant on two occasions in his car; the complainant used different types of ad formats to advertise sexual services; that the complainant worked for individuals who are not the accused between July and December 2020; that the complainant often asked the accused for rides while she was working; and that the complainant asked the accused for money because she was not making enough through her work in the sex trade.

[11] It is anticipated that the credibility and reliability of the complainant will be a central issue at trial.

Crown CCTV Application

[12] The Crown brings an application under s. 486.2(2) of the Criminal Code for the complainant to testify from a CCTV room at the Toronto courthouse, at 361 University Avenue. The Defence opposes the Crown application, but does not seek to cross-examine the officer, Detective Constable (DC) Vandekerckhove, who swore an affidavit in support of the Crown CCTV application. DC Vandekerckhove is the lead investigator of this case and an officer with the Toronto Police Service (TPS) Human Trafficking Enforcement Team.

[13] I note that it is permissible for an individual, other than the witness for whom the CCTV application is being brought, to provide an affidavit in support of the s. 486.2(2) application: R. v. J.R.M., 2020 ONSC 8130, at para. 17 (c).

[14] Section 486.2(2) of the Criminal Code states as follows:

Despite section 650, in any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused if the judge or justice is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice.

[15] Section 486.2(3) refers to the factors that a judge must consider in making a decision under subsection (2):

In determining whether to make an order under subsection (2), the judge or justice shall consider

(a) the age of the witness;

(b) the witness’ mental or physical disabilities, if any;

(c) the nature of the offence;

(d) the nature of any relationship between the witness and the accused;

(e) whether the witness needs the order for their security or to protect them from intimidation or retaliation;

(f) whether the order is needed to protect the identity of a peace officer who has acted, is acting or will be acting in an undercover capacity, or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer;

(f.1) whether the order is needed to protect the witness’s identity if they have had, have or will have responsibilities relating to national security or intelligence;

(g) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and

(h) any other factor that the judge or justice considers relevant.

[16] In R. v. M.Z., 2022 ONCJ 189, Latimer J. made the following comments concerning J.R.M.:

[8] Returning to Leach J.’s decision in JRM, His Honour discussed the implications of Parliament’s decision, in 2015, to reduce the discretionary standard for issuance of these orders from “necessary” to “facilitate”. At para 17(d), he wrote:

Courts have emphasized that s. 486.2(2) previously required that such an order be “necessary to obtain a full and candid account from the witness of the acts complained of”, whereas the amended provisions, brought about by the Canadian Victims Bill of Rights in 2015, which enacted a package of amendments to the Code and other laws, have lowered that threshold somewhat to a less stringent test. In particular:

i. The amended provisions of s, 486.2(2) now permit such orders to be made if a judge is of the opinion that the order “would facilitate the giving of a full and candid account by the witness of the acts complained”, with “facilitate” plainly meaning “to make easy or easier”, “less difficult”, or “more easily achieved”.

[17] Here, looking at the s. 486.2(3) factors, the Crown argues that complainant AAP will be testifying when she is 27 years old. She was 23 years old at time of the alleged human trafficking related offences.

[18] DC Vandekerckhove’s affidavit was not challenged. The officer deposed that he had a conversation with the complainant about the prospect of testifying and that he learned the following:

a) The alleged offences have had a traumatic impact on the complainant causing her anxiety and stress. She had not seen the accused since she reported the incident to police. The first time she would be seeing the accused would be at trial. She thinks her reaction would be fear and anxiety.

b) The complainant believes that she may feel intimidated and be too emotionally overwhelmed to speak if she had to enter a courtroom and testify. She would also feel intimidated by seeing the accused’s family members and friends inside and outside the courtroom.

c) Given the nature of the offences, the complainant believes that she would feel embarrassed discussing the events at issue in an open courtroom with strangers present.

d) The complainant believes it would take her a long time to recuperate from testifying in a courtroom, and it would worsen her mental health.

[19] The Crown submits that s. 486.2(2) sets a low threshold and the application should be granted where the judge is of the view that the provision of the testimonial aid – here, testifying from a CCTV room – will make it easier for the witness to provide her testimony in a full and frank manner.

[20] The Defence opposes the CCTV application and submits that the open court principle should generally be respected and the court should avoid automatic grants of such applications. The Defence argues, looking at the s. 486.2(3) factors, that the complainant at 27 is no longer very young, she has no apparent mental or physical disability, the applicant is in custody which goes to the complainant’s sense of safety, and the central issue at trial will be the complainant’s credibility. The Defence argues that the reasons identified by the Crown are insufficient to warrant granting the CCTV application.

[21] The Defence relies on several decisions that rejected similar applications: R. v. M.D., 2023 ONSC 6518; R. v. Grimes, 2023 NLSC 6; R. v. Gure, [2018] O.J. No. 7251; R. v. Blake, 2019 ONSC 6026; R. v. J.D., 2022 ONSC 2540; and R. v. O.J., 2022 ONSC 7301.

[22] In distinguishing some of the cases that the Defence has relied on, I make the following observations.

[23] In Grimes, the CCTV application appears to have been dismissed primarily on the basis that the complainant in that case, a male high school student, was being asked to testify about what happened on a single occasion when he was in the accused’s automobile, the accused being his female substitute teacher. I find that the within case of alleged human trafficking is a very different kind of case where the complainant AAP will likely have to testify about her entire relationship with the accused. So, Grimes is distinguishable.

[24] In Blake, the complainant was, in fact, permitted to testify from a CCTV room in Oshawa, however, Justice Di Luca declined the Crown’s request that the complainant testify remotely from a courtroom in Quebec. Blake does not assist the applicant in this case.

[25] In J.D., Justice Conlan rejected the Crown request that the alleged victim of a sexual assault be able to testify remotely via CCTV. However, the Crown application in that case was brought under s. 486.2(1) of the Criminal Code on the basis of the victim’s alleged mental disability. The court in J.D. found that there was no need to assess the suitability of the CCTV application under s. 486.2(2), hence, the J.D. case is again of little assistance to the within application.

[26] Upon review of the s. 486.2(3) factors, I find that the Crown’s CCTV application should be granted. Not much turns on the complainant’s age. She is now 27. While that is still young, her age is a relatively neutral factor in assessing the strength of the application. Similarly, no information was provided to the court that the complainant has mental or physical disabilities such that they would present a challenge to her attendance in the same courtroom as the accused.

[27] In my view, this application really turns on the next two factors, namely the nature of the offence, and the nature of any relationship between the witness and the accused. The focus of human trafficking related offences is on the alleged exploitation of the complainant or complainants as the case may be. In human trafficking cases, the alleged sexual assault of the complainant by the accused or by other persons is often at issue. The within case is no exception. Officer Vandekerckhove’s affidavit confirms that the complainant believes that she would feel embarrassed and intimidated providing her testimony in open court and in front of the accused who she has not seen in several years.

[28] The test under s. 486.2(2) sets a relatively low threshold, whether the provision of the testimonial aid will make it easier for the witness to provide her testimony in a full and frank manner. The starting point should still be the open court principle whereby the witness testifies in person. The Crown still must show, on a balance of probabilities, based on evidence that the s. 486.2(2) test is satisfied based on the factors in subsection (3). Here, I am satisfied that, due to the nature of the offences (human trafficking, uttering threats) and the necessity of the complainant having to discuss her relationship with the accused and the sexual services she was allegedly forced to perform, there is a real possibility that the complainant testifying directly in front of the accused, and potentially his friends and family members, would be an intimidating experience for her. The factor relating to “society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process” also supports the granting of the application. In conclusion, I am satisfied that having her testify from a CCTV room in the same courthouse would make it easier for her to provide her testimony in a full and frank manner. The Crown’s application for the complainant to testify from a CCTV room is granted.

Crown’s Res Gestae Application

[29] The Crown brings an application for an order admitting into evidence: a) the recording of the 911 call that the complainant made on March 1, 2021; and b) the complainant’s statements to her aunt at the time of the 911 call.

[30] The Crown argues that the allegations against the accused include that he kidnapped the complainant on February 28, 2021 and took her to Niagara Falls where, under his control, she was forced to perform sexual services for money. The allegations continue that on March 1, 2021, the accused drove the complainant to her aunt’s home in Toronto. There she was allowed to enter her aunt’s home to pick up belongings and was instructed to immediately return to the accused’s vehicle. The complainant allegedly entered the home, broke down crying, and said that she had been kidnapped and taken to Niagara Falls. The complainant’s cousin called 911. The complainant then spoke to a 911 operator. She told the operator that her ex took her to Niagara Falls and made her work and locked her in room. In the audio recording of the 911 call, the complainant is crying and appears to be upset.

[31] The Crown seeks to adduce the complainant’s statements to the 911operator and her statements to her aunt around the time of the 911 call. The Crown submits that these out-of-court statements would assist the trier of fact in assessing the complainant’s in-court testimony. The Crown acknowledges that, to the extent that the evidence is hearsay and contains prior consistent statements, it is presumptively inadmissible. However, the Crown seeks to admit the evidence on three bases:

a) The statements are admissible as res gestae, excited utterances or spontaneous utterances, which are traditional exceptions to the hearsay rule: R. v. Dakin (1995), 80 O.A.C. 253, at p. 256; R. v. Dessouza, 2012 ONSC 210, at paras. 25-30.

b) The statements are admissible under the principled approach exception to hearsay developed in cases such as Khan and Khelawon by establishing the criteria of necessity and reliability: R. v. Khan, [1990] 2 S.C.R. 531; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787.

c) The statements are admissible under an exception to the rule against admissibility of prior consistent statements: R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 161, at paras. 72-73; R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, at paras. 30-31.

[32] The Defence does not object to the admissibility of the 911 call based on it being res gestae. Instead, the Defence’s concern is that not everything that the complainant said on the 911 call should be admitted under the traditional res gestae exception. The Defence argues that whereas the complainant would have limited opportunity to fabricate what she was saying about her last few days from February 28 to March 1, 2021 during the 911 call, the same may not hold true about periods prior to that. The Defence requests that any admissibility ruling avert to this distinction. Ultimately, in oral argument, the Defence conceded that the 911 call was admissible as res gestae, but reserved its right to renew its objection to the admissibility of the 911 call if the complainant was not going to testify.

[33] Although the parties ended up in agreement that the 911 call is admissible as res gestae, since the application was fully argued, I will still provide my reasons for decision for finding the 911 call recording admissible.

[34] In R. v. Camara, 2021 ONCA 79, 400 C.C.C. (3d) 490, the res gestae exception to the hearsay rule was described as follows:

[83] Res gestae is a long-established concept in the law of evidence. Despite its antiquity, its precise doctrinal significance at common law eludes clarity and precision. In translation for forensic purposes, it approximates “the events at issue in the litigation”. This adds little to our basic concepts of relevance and materiality. Its passing would not be mourned. All the more so when we have substituted principle for shibboleth.

[84] Whether they are received as a true exception to the hearsay rule - thus as evidence of the truth of what was said - or as original evidence not reached by the hearsay rule, statements admitted under res gestae include:

i. spontaneous statements or excited utterances;

ii. statements accompanying and explaining an act which can be properly evaluated as evidence only if considered in conjunction with the statement; and

iii. statements relating to a physical sensation or mental state, such as intention or emotion.

See, Sheri, at paras. 107-10. See also, Criminal Justice Act 2003 (UK), s. 118(1), para. 4.

[85] The excited utterances aspect of res gestae posits a mind so dominated by the event that the statement can be regarded as an instinctive reaction to that event thus giving the declarant no real opportunity for reasoned reflection or concoction. Contemporaneity of the statement with the event is a matter of degree. For the statement to be spontaneous, it must be so closely associated with the event which has excited the statement that it can fairly be said that the declarant’s mind remained under the domination of that event. In other words, the trigger mechanism for the statement – the event – was still operative. Spontaneity and contemporaneity are guarantors of reliability: R. v. Andrews, [1987] A.C. 281 (H.L.), at pp. 300-1.

[86] In connection with statements accompanying and explaining an act, the act must be relevant in the absence of the statement. The justification for admitting the statement is that it may explain the precise significance of the act by showing its nature or the state of mind that accompanied it. See, for example, R. v. Kearley, [1992] A.C. 228 (H.L.), at p. 246.

[35] In R. v. S.R., 2023 ONSC 350, Barrett J. explained the res gestae exception as follows:

[17] An exception to the general rule against the admission of hearsay evidence exists for excited or spontaneous utterances that are reasonably contemporaneous with the alleged occurrence. This is referred to as the res gestae exception. If admissible as a hearsay exception, the utterance is not barred from admission by the rule against prior consistent statements: see David M. Paciocco, “The Perils and Potential of Prior Consistent Statements: Let’s Get it Right”, (2013) 17 Can. Crim. L. Rev. 181, at p. 192 (“Paciocco, ‘Prior Consistent Statements’”).

[18] A res gestae statement is admissible where “the statement itself forms part of the incident that gives rise to the charge”: R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 161, at para 35.

[19] Strict contemporaneity between the event and the statement is not required; reasonable contemporaneity will suffice. The circumstances in which the utterances were made must be such that the possibility of concoction or deception can safely be discounted. If so, the evidence is admissible. It is the stress and trauma of the triggering event that provides an assurance of reliability. The declarant’s mind is said to be so dominated by the event that the utterance is an instinctive reaction without any “real opportunity for reasoned reflection or concoction”: R. v. Camara, 2021 ONCA 79, 400 C.C.C. (3d) 490, at para. 85. See also R. v. MacKinnon, 2022 ONCA 811, at paras. 41-44.

[20] The focus of the inquiry, however, is not strictly temporal. Rather, the totality of the circumstances surrounding the statement must be considered to determine whether the possibility of concoction or distortion can be safely discounted: see R. v. Dakin (1995), 80 O.A.C. 253 (Ont. C.A.), at para. 20; R. v. Nguyen, 2015 ONCA 278, 125 O.R. (3d) 321, at paras. 149-50; Camara, at paras. 83-85.

[21] It is not uncommon for statements made during 911 calls to be admitted under the res gestae exception: see R. v. Brown, 2015 ONSC 4121, 22 C.R. (7th) 118, at para. 34.

[36] In R. v. Sylvain, 2014 ABCA 153, 575 A.R. 59, an important caveat about 911 calls was made:

[32]…..It is true that the mere making of a 911 call does not necessarily bring that call within the “excited utterances” exception. The defence might well argue, as it did here, that the fact the call was made is equally consistent with the fact it was concocted. That is why a trial judge must assess all the relevant evidence relating to the call, including the content, timing and circumstances of a 911 call, and determine whether in light of all the evidence, it properly falls within the “excited utterances” category.

[37] Applying the principles to the case at hand, I find that the entirety of the 911 call is admissible under the res gestae exception to hearsay evidence because the totality of the circumstances surrounding the complainant’s statements during the 911 call suggest that the possibility of concoction or distortion can be safely discounted.

[38] First, while only reasonable contemporaneity is required, something approaching full contemporaneity was present in this case. The evidence suggests that, on March 1, 2021, after allegedly being kidnapped and made to perform sexual services in Niagara Falls, the complainant was driven by the accused to her aunt’s home in Toronto to pick up her belongings on the condition that she immediately return to the accused’s vehicle. It appears that, at the complainant’s first real opportunity away from the accused, the complainant’s cousin called 911 and the complainant spoke to the operator. On the call, the complainant appears to be crying and upset and suggests that she was with the accused only five minutes earlier. Towards the end of the 911 call, the complainant tells the 911 operator, “I think they came back” and then “they just drove away.” One could reasonably argue that there is virtually no delay between the events which have upset or frightened the complainant and the 911 call.

[39] Second, there is abundant evidence that the complainant is panicked on the call as she is providing her statements to the 911 operator. The 911 operator tells the complainant to slow down apparently in response to the panicked way in which the complainant is speaking. In other words, the complainant is still in the emotional thrall of reacting to whatever has upset or frightened her.

[40] Third and finally, courts have routinely found evidence from 911 calls to be admissible: Nicholas, at para. 89; Dessouza, at para. 30; Brown, at para. 38.

[41] I would find the entire 911 call to be admissible rather than dissect it further on the basis of whether every statement uttered by the complainant on the call falls within the res gestae exception. The trier of fact could lose some important contextual aspects of the call were it to be dissected further.

[42] Given my finding of admissibility under the res gestae exception, it is not strictly necessary for me to examine the other two routes to admissibility suggested by the Crown. However, I will next provide my analysis of whether the 911 call would be admissible under the principled approach to hearsay.

The Principled Approach

[43] Under the principled approach, hearsay can exceptionally be admitted into evidence when the party tendering it demonstrates that the twin criteria of necessity and threshold reliability are met on a balance of probabilities: Khelawon, at para. 47.

[44] The Crown argues that the 911 call is admissible under the principled approach because it is necessary to hear the 911 call and the reliability concern is addressed since it is anticipated that the complainant will be testifying.

[45] I am not clear as to the Defence position regarding the principled approach as the Defence had conceded admissibility under the res gestae exception on the condition that the complainant testifies at trial.

[46] In R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, the possibility that a statement admissible under res gestae or as an excited utterance may also be admissibility under the principled approach was addressed.

[18] An excited utterance can also satisfy the principled approach to the hearsay rule. The two requirements for the admission of a hearsay statement under the principled approach are reliability and necessity: R. v. Youvarajah, [2013] 2 S.C.R. 720, [2013] S.C.J. No. 41, 2013 SCC 41, at para. 21. The reliability of the statement comes from the absence of an opportunity to concoct a story. As for necessity, where, as in this case, the witness testifies, the objection to hearsay statements arising from the absence of an opportunity to cross-examine is negated. More fundamentally, though, as pointed out by Justice Paciocco in "The Perils and Potential of Prior Consistent Statements: Let's Get It Right" (2013), 17 Can. Crim. L. Rev. 181 (Paciocco), at pp. 192-93:

. . . [T]he "necessity" component [of the basic hearsay principles] performs a "best evidence" function. It exists to ensure that if it is possible to present "better evidence" in the form of in-court testimony, parties should not be permitted to resort to hearsay proof . . . There are times, however, when hearsay evidence is expressed under circumstances that yield tremendously helpful criteria for evaluating the reliability or credibility of a factual claim.

[47] I find that the complainant’s statements made during the 911 call are also admissible under the principled approach exception to the hearsay rule. The reliability of the statement is addressed from the absence of an opportunity to concoct a story given that the complainant had supposedly only just left the accused’s control. Also, because the 911 call was recorded, the complainant’s testimony can be compared to the statements she made that were “locked in” on the 911 recording.

[48] The Crown emphasizes that, in no way, is it planning on arguing that the truth of the complainant’s testimony is enhanced simply by mere repetition. In other words, the Crown does not intend to argue that because what the complainant says at trial was previously stated on the 911 call, she is more believable. That would offend the evidentiary rule concerning the inadmissibility of a prior consistent statement, discussed below. Instead, the admission of the 911 recording goes to providing the sequence and timing of events, and the mental state of the complainant at the time of the offence. The Crown suggests, and I agree, that the admission will assist the trier of fact in evaluating the credibility of the complainant’s court testimony.

Exception to Inadmissibility of Prior Consistent Statements

[49] Once again, having found the 911 call admissible under the res gestae exception and the principled approach, it is not strictly necessary that I provide reasons concerning the Crown’s third route to admissibility based on an exception to the rule against admissibility of prior consistent statements. Still, for the sake of completeness, I indicate herein that I find the 911 call admissible for the limited purpose of narrative as circumstantial evidence, as the concept is explained in Khan (2017):

[25] Prior consistent statements are presumptively inadmissible because they lack probative value: R. v. Stirling, [2008] 1 S.C.R. 272, [2008] S.C.J. No. 10, 2008 SCC 10, at paras. 5-7. The fact that someone said the same thing on a prior occasion to what he/she has said in court is, generally speaking, not probative of whether the witness is offering truthful testimony in court. It would be self-serving to allow a witness to buttress his or her own testimony with her own prior statements.

[26] As Watt J.A. noted in C. (M.), at para. 59, citing Paciocco, at p. 184, prior consistent statements are an amalgam of two elements -- the hearsay element and the declaration element. The hearsay rule takes care of the hearsay element. The prior consistent statement rules generally exclude the declaration [page528] element. Where admissible, the declaration element is proof that a statement was made, and allows a trier of fact to derive appropriate inferences from the fact and context in which the statement was made: Paciocco, at p. 184.

[27] The common law recognizes a number of exceptions to the basic rule that prior consistent statements are inadmissible. When a prior consistent statement is admissible pursuant to one of these exceptions, it is admissible for limited purposes, and those purposes differ among exceptions.

[28] For example, where a prior consistent statement is admitted to rebut an allegation of recent fabrication, it is admitted solely to provide a direct response to the suggestion that the witness concocted allegations after a triggering event. The statement is not admitted for the truth of its contents, but only to show that the details were not added after the point in time suggested by opposing counsel.

[29] Other recognized exceptions include admitting prior consistent statements as pure narrative evidence, and narrative as circumstantial evidence: Paciocco, at p. 182.

[30] As pure narrative, prior consistent statements carry no weight because they are tendered simply to give the background to explain how the complaint came to be before the court. This court described the pure narrative exception in R. v. F. (J.E.) (1993), 16 O.R. (3d) 1, [1993] O.J. No. 2589 (C.A.), as allowing the decision maker to understand the "chronological cohesion" of the case. The statement is not used to prove the truth of its contents, nor are there any inferences arising that would make the case of one person more compelling than that of another. It is merely an aid in understanding the case as a whole.

[31] But sometimes the circumstances surrounding the making of the prior consistent statement are such that the statement assists in assessing the reliability and credibility of a witness' in-court testimony, giving prior consistent statements admitted as "narrative" a more substantive use: R. v. Dinardo, [2008] 1 S.C.R. 788, [2008] S.C.J. No. 24, 2008 SCC 24, at para. 39; R. v. Evans, [1993] 2 S.C.R. 629, [1993] S.C.J. No. 30, at para. 32. This is referred to as narrative as circumstantial evidence.

[50] In sum, I find that the complainant’s statements on the 911 call are admissible: a) for the truth of their contents under the res gestae exception; b) under the principled approach for the sequence and timing of events, and the mental state of the complainant at the time of the offence, which will assist the trier of fact in evaluating the credibility of the complainant’s court testimony; and c) under the narrative as circumstantial evidence exception to the inadmissibility of prior consistent statements.

Complainant’s statements to her aunt made at the time of the 911 call

[51] The Crown seeks to have the complainant’s statements to her aunt made at the time of the 911 call declared admissible via the same routes as the 911 call itself. However, I see the issue differently. As I understand it, the Crown is seeking an admissibility ruling concerning the aunt’s statement to the police about what the complainant said to her around the time of the 911 call. In my view, the difference is that the aunt would not be subject to the res gestae exception and what the aunt told police about what the complainant said to her is effectively double hearsay.

[52] I see the better course of action as leaving the admissibility ruling, if any, about the complainant’s statements to her aunt made at the time of the 911 call, as gleaned from the aunt’s statement to the police, to be an issue best left to the trial judge. The parties agree that it is presently unclear whether the aunt is going to testify at trial and much depends on the complainant’s testimony. I find the Crown’s request for such a ruling to be premature.

[53] In conclusion, the Crown’s application concerning the admissibility of statement made by the complainant during or around the time of the 911 call is granted in part.

Pinto J. Released: June 20, 2024