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), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

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

(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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, 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. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

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.

(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 OF APPEAL FOR ONTARIO

CITATION: R. v. Rhayel, 2015 ONCA 377

DATE: 20150527

DOCKET: C57110

Strathy C.J.O., Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hani Rhayel

Appellant

Alan D. Gold and Melanie J. Webb, for the appellant

Joanne K. Stuart, for the respondent

Heard: December 18, 2014

On appeal from the convictions entered on March 22, 2013 by Justice Thomas A. Heeney of the Superior Court of Justice, sitting without a jury.

Epstein J.A.:

OVERVIEW

[1] On December 5, 2010, following an evening with friends, the appellant, a Western University student, retained the services of the complainant, a sex worker. They drove in the appellant’s car to an area known as the Ponds, a secluded spot behind a hospital in London. There, they engaged in sexual activity in the back of the appellant’s car. The appellant then dropped the complainant off at a gas station and drove away. The complainant told the gas station attendant she had been assaulted and asked him to call 911. He placed the call.

[2] The complainant reported to the responding officer that she had agreed to have sex with the appellant but only on the condition that he use a condom. He refused to put one on so she terminated the arrangement. It was then that the appellant assaulted her, physically and sexually. According to the complainant, the appellant threatened to kill her.

[3] Three days later, the complainant provided the police with a lengthy videotaped statement. Charges were laid.

[4] After a five-day judge-alone trial, the appellant was acquitted of common assault and convicted of sexual assault and threatening death. The appellant was sentenced to a term of imprisonment of two years less a day, three years’ probation, and ancillary orders.

[5] In this conviction appeal, the appellant argues that the trial judge erred in admitting the complainant’s videotaped statement for the truth of its contents and that this error, together with the trial judge’s over-emphasis on the complainant’s demeanour as she gave her videotaped statement in assessing her credibility, caused him to over-value the complainant’s evidence. These errors caused the trial judge to apply a different standard of scrutiny to the complainant’s evidence relative to the appellant’s evidence. This different level of scrutiny, in turn, undermined the appellant’s ability to raise a reasonable doubt, resulting in reversible error.

[6] I agree. For the reasons that follow, I would allow the appeal.

BACKGROUND

A. The Complainant’s Three Statements

[7] Leading up to trial, on three separate occasions, the complainant detailed what transpired between herself and the appellant: she gave one statement to the police on December 5, 2010, which came to be referred to as the “pure version”; another to the police in a videotaped statement on December 8, 2010; and one at the preliminary inquiry on November 23, 2011. I summarize each statement below.

i. The Complainant’s Communication With Police Following the Incident and the “Pure Version” Statement – December 5, 2010

[8] Officer Bollman responded to the 911 call. When he arrived at the gas station, the complainant reported that she and the appellant had agreed to have sex. However, after a disagreement over the amount of money the appellant was to pay, the appellant assaulted the complainant, physically and sexually, in the back seat of the car. He then slapped her and threw her in the snow.

[9] Officer Bollman examined the complainant’s face and neck area. He did not observe any redness, swelling, marks or scratches.

[10] According to Officer Bollman, he and Officer May, another officer who responded to the 911 call, took the complainant to the area where she indicated the assault had taken place. The officers saw no fresh marks in the snow. While outside of the car the complainant pointed to a condom box on the ground, indicating it was the box of condoms the appellant had purchased. Officer Bollman testified that, in his view, the box looked like it had been there for quite a while.

[11] Officer Bollman testified that the complainant was visibly upset throughout the course of his interactions with her. Officers Bollman and May also testified that the complainant’s behavior was consistent with someone who was on drugs but the complainant denied “being on” anything.

[12] Officer Bollman took the complainant home, where the complainant gave her “pure version” statement. According to Officer Bollman’s typed notes taken during the interview, the complainant detailed the events as follows.

[13] The complainant was with her friend on the street. Her friend went into her apartment to get her cell phone. The appellant, who had approached the women earlier, came by again. The complainant got into the car. They agreed on sex for $80. The appellant insisted on stopping and purchasing condoms.

[14] After the appellant purchased condoms, the complainant expressed concern about how far from the downtown core the appellant was taking her. The appellant said he was going to an area behind the hospital. The complainant said okay. They then discussed a price of $60; $40 up front and $20 later. The appellant gave the complainant $40.

[15] The complainant insisted the appellant wear a condom. When they arrived at the Ponds, parked the car, and got into the back seat, the appellant refused to put one on. The complainant gave him the $40 back and went to return to the front seat. The appellant pulled her jacket off, flipped her over, hit her 15 times in the face, slapped her, punched her on top of her head and her face, pulled her jeans off, put his fingers in her anus, and threatened to kill her. He also scratched her and put his penis in her mouth, choking her. He then ejaculated over her upper thighs. The complainant pulled up her jeans, trapping the ejaculate into the fabric of her jeans.

[16] They went to a gas station where the appellant gave the complainant $10 to get cigarettes. He said he would give her another $40 on her return to the car. She went inside the store. The appellant left.

[17] The complainant gave the police a description of her alleged attacker, including a gold chain necklace he was wearing. She also described his car and provided four digits of its licence plate.

[18] She refused to go to the hospital, offering no explanation. She allowed the police to take her jeans for testing.

ii. The Complainant’s Videotaped Statement to the Police – December 8, 2010

[19] Three days later, the complainant went to the police station and provided a two-hour videotaped statement. The statement was not given under oath. The interviewing officer did not counsel the complainant about the need to tell the truth. In this statement, the complainant detailed the events as follows.

[20] On December 5, 2010, the complainant was on the street with another sex worker, who she referred to as “Lisa”. When the appellant pulled up, both women got into the car. After some conversation, the women got out of the car. Lisa went into a building to “grab a pill”. The complainant, upon being approached by the appellant again, got back into his car. The two drove away.

[21] The appellant and complainant agreed that the complainant would perform oral sex on the appellant for $60: $40 in advance and $20 afterwards.

[22] On their way to a more private location, the appellant purchased condoms from a Mac’s Milk store even though the complainant had some with her. They drove to the Ponds. The complainant got into the back seat and went to put a condom on the appellant. He refused and as a result, the complainant refused to proceed. She gave the appellant his $40 back. It was then that the sexual assault took place.

[23] According to the complainant, the appellant flipped her upside down and pulled her pants off. During this manoeuvre, her shoulder “popped out”. The appellant inserted his fingers into the complainant’s anus and then put his penis into her mouth. The appellant slapped the complainant’s face and hit her on the back of her head. After threatening the complainant, the appellant ejaculated on her lap. The complainant put her pants back on and asked for the $40. The appellant refused. The complainant returned to the front seat and unlocked the car door so the appellant could get back into the front seat of the car.

[24] The appellant drove to the gas station, gave the complainant $10 and asked her to buy cigarettes, telling her that after she purchased the cigarettes he would give her the $40. When the complainant got out of the car, the appellant drove off.

[25] In response to questions the police posed about her lifestyle, the complainant said she used morphine every day and was “sketchy” the day of the incident. She admitted to having smoked marijuana and taken morphine before meeting with the police and giving her videotaped statement. She also admitted to having previously used crystal meth. She indicated that she had suffered brain damage from her drug use and had overdosed on occasion.

[26] The complainant told the police she did not want to go to the hospital and “sit there for four hours” as it would not prove anything.

iii. The Complainant’s Evidence at the Preliminary Inquiry – November 23, 2011

[27] The complainant testified that she and her friend, Tanya Albert, were on the street in the early hours of December 5, 2010. They originally planned to rob someone. But when they got into the appellant’s car, they “chickened out”. They got out of the car and Ms. Albert went into a building to get drugs. The appellant passed by again and invited the complainant into his car. They discussed his paying $80 for a “blow job”. The complainant insisted on the appellant’s wearing protection. She had condoms. However, the appellant insisted on buying his own so they stopped at a Mac’s Milk store where the appellant purchased a box of condoms.

[28] After driving to the Ponds, they got into the back seat. The appellant gave her $40, promising her the other $40 after the sex act. At that point, the appellant refused to use a condom. As a result, the complainant refused to participate and returned the $40 to the appellant.

[29] The appellant then struck her hard on the face and pulled her hair. The appellant flipped her upside down. In doing so the complainant’s shoulder became dislocated. The appellant choked her, pulled her jeans, belt and underwear off, and put three fingers up her anus. The appellant threatened to kill the complainant, flipped her back upright and shoved his penis in her mouth, choking her. The appellant finally ejaculated across her lap and bare legs.

[30] The complainant pulled her jeans back on and in the process she caught some semen in the fabric. She crawled into the front seat and unlocked the car door to allow the appellant to get into the front of the car.

[31] The appellant took the complainant to a gas station and gave her $10 to get some cigarettes. He promised to give her an additional $40 when she returned. The complainant knew it was a ploy but wanted out of the car. As soon as she left the car, the appellant drove away. The complainant noted part of the license plate number and the gas station attendant called 911.

[32] In cross-examination, the complainant gave evidence about her drug history and cocaine psychosis. She admitted her criminal record. She testified that she suffered from post-traumatic stress disorder, borderline personality disorder, bipolar disorder, and attention deficit hyperactivity disorder.

[33] The complainant said she refused to go to the hospital because of her fear of hospitals.

B. The Trial

[34] At trial, there was no doubt that the appellant engaged in sexual activity with the complainant. While there was a dispute about the nature of the activity, the central issue was whether the complainant consented to the sexual conduct that took place.

[35] Crown counsel called the 911 operator, a number of police officers, and Ms. Albert. The complainant did not testify. She died after the preliminary inquiry but before the trial took place. Her videotaped statement and the transcript of her evidence given at the preliminary inquiry were both admitted for the truth of their contents.

[36] The appellant testified on his own behalf.

[37] I will deal with the evidence of the complainant and the evidence of the appellant, in turn.

i. The Complainant’s Evidence – Her Testimony at the Preliminary Inquiry and her Videotaped Statement to the Police on December 8, 2010

[38] On consent, the trial judge admitted the complainant’s evidence given at the preliminary inquiry for the truth of its contents pursuant to s. 715(1) of the Criminal Code, R.S.C. 1985, c. C-46.

[39] Subsequent to the admission of the complainant’s preliminary inquiry testimony, the Crown applied to have the complainant’s videotaped statement admitted into evidence “as a Principled Exception to the Hearsay Rule”. In his notice of application, Crown counsel identified various pieces of “additional information” contained in the videotaped statement that were not captured in the complainant’s preliminary inquiry testimony. The Crown also highlighted the opportunity presented by the videotaped statement to observe the complainant’s demeanour as she gave her account of the events in issue.

[40] In his reasons on the voir dire, the trial judge began his analysis of the admissibility of the videotaped statement by setting out the Crown’s position, saying that, “[t]he Crown seeks to admit this statement as substantive evidence of the truth of what the complainant says in that statement. It is therefore hearsay, and I start with the presumption that hearsay evidence is presumptively inadmissible.” The trial judge then turned to the necessity and reliability of the videotaped statement, the two prongs of the principled approach to admitting hearsay evidence: see R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 2.

[41] At the outset of the voir dire, defence counsel conceded necessity. However, on appeal, the appellant questioned the extent of the concession. Mr. Gold, counsel for the appellant on appeal, suggested trial defence counsel’s concession was limited to admitting the statement solely to observe the complainant’s demeanour as she gave her account of events to the police.

[42] I disagree with this suggestion. The following passages from the transcript of the voir dire demonstrate that defence counsel conceded necessity not only for the purpose of observing the complainant’s demeanour but also for admitting the videotaped statement for its truth.

[43] As the Crown was presenting its submissions on the voir dire, the following exchange took place:

[Defence Counsel]: Your Honour, perhaps I can assist my friend and the court in her presentation. I will concede necessity and really the issue is reliability.

[44] Some debate then ensued as to what defence counsel meant when he said, “I will concede necessity”. This debate culminated in the following exchange:

[Crown Counsel]: I’ll argue reliability, Your Honour, because I understand that’s not being conceded so I’ll make my full argument on reliability.

THE COURT: Yes, and just on the necessity issues, it’s conceded so we don’t need to go into it, although I mean I was just wondering whether there was an issue with respect to necessity given that we do have a transcript of her evidence at the preliminary. Is it conceded that notwithstanding the fact that she did testify at the preliminary, that it’s still necessary to have her video statement admitted?

[Crown Counsel]: I think that’s a question for [defence counsel].

THE COURT: [Defence counsel]?

[Defence Counsel]: I thought of that myself and, you know, with respect to the difference between the police statement and the preliminary hearing statement, I was willing to concede necessity on that basis.

[45] This concession notwithstanding, the trial judge independently considered the issue and found the element of necessity had been met. The basis of the trial judge’s conclusion is revealed in the following passage:

[Why is the video statement necessary?] That is because there are many additional things that the video statement has to offer that cannot be found in a cold reading of a transcript, and that includes the demeanour of the witness, the spontaneity of her answers or lack thereof, her emotional state as she describes the events, her body language, the way she demonstrates the physical positions that she was put in as events unfolded and so on.

It is necessary to play the videotape because that is the only way to, in effect, bring the complainant back to life and watch and listen to her tell her story.

[46] The trial judge then turned his attention to the videotaped statement’s reliability. He outlined the hearsay dangers: the statement was not given under oath, the complainant was given no caution by the investigating officer as to the need to tell the truth, there was no contemporaneous cross-examination, and the witness was not present in the courtroom to be observed. He found, however, that the complainant’s version of events given in the videotaped statement was “virtually identical” to that given at the preliminary inquiry, a version upon which the complainant was thoroughly cross-examined. The trial judge found that the videotaped statement served as a reliable substitute to his not being able to observe the complainant as she recounted her version of events, given that what she told the police during her videotaped statement was so very similar to the evidence she gave at the preliminary inquiry. The trial judge further found that the reliability factor was enhanced because many of the details provided by the complainant were corroborated by other independent evidence.

[47] After taking into account the factors that added to and detracted from the reliability of her videotaped statement, the trial judge concluded that the statement was sufficiently reliable to be admitted into evidence.

[48] The trial judge then weighed the probative value of the videotaped statement against its potential prejudicial effect. He found the statement to be highly probative. He also acknowledged the possible prejudice stemming from the violation of the rule against admitting prior consistent statements. He said, “the danger [is] that the trier of fact might be tempted to conclude that because she said the same thing in both cases, at both times, that therefore it is more likely that those statements are true.” The trial judge found that this prejudice “is of little concern” because he was sitting without a jury and “you can take it as a given that I have directed myself as to the uses that this evidence can and cannot be put.”

[49] Against this background, the trial judge admitted the complainant’s videotaped statement into evidence for the truth of its contents and for its demeanour value.

ii. The Appellant’s Testimony

[50] The appellant testified that on the night in question he went out with friends but did not consume any drugs or alcohol. He left his friends to look for “a good time”. He came upon the complainant and Ms. Albert. The women got into his car. After some conversation, he dropped them off and continued driving.

[51] The appellant then saw the complainant by herself. He pulled up beside her and she got into the car. He asked her to quote a price. She said, $40 for oral sex and $60 for intercourse. They agreed on $60 for intercourse. The appellant went to a store and bought condoms.

[52] When they got to the Ponds the complainant climbed into the back seat. Because he no longer had $60 after purchasing the condoms, the appellant told the complainant he just wanted oral sex. He gave her $40 and put on a condom. The complainant performed oral sex on him. After about 20 minutes he still had not ejaculated. The complainant, frustrated, asked him to remove the condom so she could “finish him” with her hand. He agreed and removed the condom. The complainant spit on her hand, for lubrication purposes, and brought him to a climax.

[53] When the complainant started to use her hand, she complained about having to kneel. The appellant therefore moved to sit, facing toward the back of the car, on the console between the two front seats of the car. The complainant sat on the back seat facing him. In cross-examination, the appellant’s story as to how each person was precisely positioned shifted somewhat.

[54] When the appellant climaxed his ejaculate sprayed over the front of the complainant’s pants and belt. The complainant demanded $20 because the appellant had ruined her clothing and had taken longer than anticipated. The appellant responded saying he did not have $20: after using funds to purchase condoms, he only had $10 left. The complainant became upset. An altercation ensued in which the complainant kicked and spit at the appellant and tried to get his wallet by reaching into the pocket of his pants. The appellant defended himself by putting his hands on the complainant’s and telling her to calm down.

[55] The appellant finally subdued the complainant by saying they would go to a gas station and he would get her some more money. The complainant agreed as long as the appellant obtained an additional $40. The complainant moved to the front seat, unlocked the door, and the appellant got into the driver’s seat.

[56] At the gas station, the appellant gave the complainant $10 to go inside and get cigarettes. The complainant got out of the car and the appellant drove away.

[57] The appellant denied any non-consensual sex, any assaultive behaviour, or having threatened the complainant.

REASONS FOR CONVICTION

[58] The trial judge extensively reviewed the evidence of each witness, including the complainant’s testimony at the preliminary inquiry and her videotaped statement. He also detailed his observations of the complainant’s demeanour based on having watched the videotaped statement and gas station security footage, and having listened to her 911 call.

[59] The trial judge noted several aspects of the appellant’s evidence that he found to be contradictory, improbable or contrary to common sense. These aspects include: (1) the financial arrangements between him and the complainant; (2) where the alleged assault took place; (3) the use of a condom; (4) the parties’ physical positions in the car; (5) the circumstances of ejaculation; (6) the complainant’s aggression; and (7) what transpired at the gas station.

[60] Turning to the complainant’s evidence, the trial judge first canvassed his impression of the complainant’s demeanour as observed when she gave her videotaped statement. The trial judge described the complainant as an honest person sincerely trying to give the best account she could of what had taken place. He found the complainant’s ability to observe and recall details of the events in question to be “remarkable”. He also noted the parts of her evidence that he found were corroborated by other evidence. The trial judge concluded his summary of the complainant’s evidence by again commenting on her demeanour.

[61] The trial judge rejected the defence theory that the complainant was angry that the appellant had short-changed her and had therefore fabricated her story to get even with him. He found that the theory defied common sense. While the trial judge recognized certain weaknesses and inconsistencies in the complainant’s evidence, he found that none related to the material aspects of her complaint.

[62] The trial judge concluded that he was not left in any doubt about the reliability and credibility of the complainant’s evidence. He said, “I found her video statement to be entirely believable. I am satisfied that the emotions she displayed there and in the 911 call are real and are not an act.” He was satisfied beyond a reasonable doubt that the appellant sexually assaulted the complainant and threatened to kill her. He therefore convicted the appellant of sexual assault and uttering a threat to cause death.

[63] However, the trial judge found he was left in a reasonable doubt about the charge of common assault “by reason of the lack of evidence to corroborate the complainant’s evidence that she was struck repeatedly by the [appellant]”. The trial judge therefore found the appellant not guilty of common assault.

ISSUES

[64] The appellant submits the trial judge erred in several respects, including by:

1. admitting the complainant’s videotaped statement into evidence for the truth of its contents;

2. overly relying on the complainant’s demeanour in assessing her credibility; and

3. applying a different level of scrutiny to the defence evidence compared to that of the Crown.

ANALYSIS

1. Did the trial judge err in admitting the complainant’s videotaped statement into evidence for the truth of its contents?

[65] Generally, three considerations guide the receivability of evidence. Evidence must be relevant in the sense of being probative of a fact a party seeks to establish. Evidence must also be material in the sense that the fact the evidence is proffered to establish relates to an issue in the case. Finally, the evidence must not contravene any admissibility rule. If one of the requirements is not satisfied, the evidence must not be admitted. For a detailed summary of these three factors, see Watt J.A.’s analysis in R. v. Luciano, 2011 ONCA 89, 273 O.A.C. 273, at paras. 203-211.

[66] The problem with the content of the videotaped statement is that it runs afoul of two interrelated exclusionary rules. First, the statement is inadmissible hearsay because it does not satisfy the principled approach to the admission of hearsay evidence. Second, the statement constitutes a prior consistent statement. I expand below.

i. Necessity and the Principled Approach to Hearsay

[67] As discussed above, the Crown sought to adduce the out-of-court videotaped statement for the truth of its contents. Therefore, subject to falling within the principled exception to the hearsay rule, it is caught by the exclusionary rule against hearsay evidence. The principled exception permits admission of hearsay evidence if, on a voir dire, the party seeking to admit the evidence establishes, on a balance of probabilities, sufficient indicia of necessity and reliability: Khelawon, at para. 2.

The Context of the Necessity Analysis

[68] There are three important aspects to the context of the necessity analysis.

[69] First, at the time the voir dire concerning the admissibility of the videotaped statement was conducted, the trial judge had already admitted the complainant’s evidence given at the preliminary inquiry under s. 715(1) of the Criminal Code. Notably, in his reasons on the voir dire, the trial judge remarked that, “the important parts of her video statement are identical to the important parts of her testimony at the preliminary inquiry”.

[70] While the videotaped statement contained some information not contained in the complainant’s evidence at the preliminary inquiry, that information was, in my view, peripheral. The additional information related to matters extraneous to what the trial judge had to decide; namely, what took place in the car while parked at the Ponds.

[71] Second, as previously indicated, defence counsel at trial conceded that the necessity element was met in the circumstances.

[72] Third, as I also referenced previously, to his credit, the trial judge did not just accept the concession. He undertook his own analysis. This analysis is reviewable by this court.

The Analysis of the Necessity Element in this Context

[73] In my view, in the circumstances here, the necessity element was not met. Simply put, what the complainant said in her videotaped statement was not necessary as that evidence was, at the time the trial judge was considering the admissibility of the videotaped statement, already before the court through her testimony at the preliminary inquiry: see R. v. C. (R.) (2005), 2005 CanLII 27316 (ON CA), 77 O.R. (3d) 364, at para. 20; see also R. v. Meaney (1996), 1996 CanLII 6635 (NL CA), 111 C.C.C. (3d) 55 (Nfld. C.A.), in which the Court wrote, at para. 42: “the criterion of necessity will not operate such as to allow the introduction of evidence which, in itself, may not be necessary because it is merely repetitious of statements already admitted and, for that reason may have little or no probative value, whereas the prejudice to the accused resulting from its admission would be great.” It is to be remembered that, on a number of occasions, the trial judge commented on how very similar these two accounts of the complainant were.

[74] Absent proof of necessity, the videotaped statement was not admissible under the principled exception to the hearsay rule. In admitting it, the trial judge fell into error.

[75] As I will now discuss, this error was compounded by the fact that the videotaped statement amounted to a prior consistent statement.

ii. The Rule Against Prior Consistent Statements

[76] In the light of the express recognition that the complainant’s testimony at the preliminary inquiry was “virtually identical” to her account as recorded in the videotaped statement, what the complainant said in her statement amounts to a prior consistent statement.

[77] Prior consistent statements are generally inadmissible because they lack probative value, are often self-serving, and are hearsay: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 36.[^1]

[78] Prior consistent statements lack probative value as, by definition, they are merely a repeat of evidence. Their lack of probative value stems from the fact that it is impermissible to assume that because a witness has made the same statement in the past, he or she is more likely to be telling the truth. Thus, repetition does not demonstrate or prove anything. In R. v. Divitaris (2004), 2004 CanLII 9212 (ON CA), 188 C.C.C. (3d) 390 (Ont. C.A.), at para. 28, Feldman J.A. memorably expressed the rationale for the rule in this way: “A concocted statement, repeated on more than one occasion, remains concocted”.

[79] Here, for example, the fact that the complainant reported in her videotaped statement that a dispute broke out between her and the appellant when he refused to use a condom does not in any way support the conclusion that her preliminary inquiry testimony to this effect was true. There remains the possibility that her evidence on this issue was fabricated on both occasions.

[80] The trial judge recognized that the admission of the videotaped statement for the truth of its contents would “offend the general rule against prior consistent statements”. However, he reasoned that as it was a judge-alone trial, the potential prejudice was “of little concern”. In his reasons for conviction, the trial judge noted on several occasions that he had cautioned himself on what the evidence could and could not be used for. However, as I will discuss below, I am of the view that, these cautions notwithstanding, the repetition of the complainant’s evidence impacted the way in which the trial judge analyzed the critical evidence as to what took place in the appellant’s car when it was parked at the Ponds.

iii. The Demeanour Value of the Videotaped Statement

[81] The trial judge received the videotaped statement into evidence, in a sense, as a package. He received not only the words spoken by the complainant for their truth, but also the manner in which she delivered her statement – in other words, her demeanour. The trial judge found the complainant’s demeanour to be important as it brought her words to life.

[82] Given my conclusion that the videotaped statement was inadmissible for its truth, it follows that the complainant’s demeanour as she gave the statement was also inadmissible. I see no value in the way the complainant spoke inadmissible words at a moment in time removed from when she gave her evidence at the preliminary inquiry.

iv. Summary of Admissibility of Complainant’s Videotaped Statement

[83] Based on this analysis, I am of the view that the trial judge erred in admitting the videotaped statement into evidence for the truth of its contents and in relying on it for its demeanour value. The impact of this error was two-fold. The trial judge effectively received the complainant’s examination-in-chief into evidence twice. And he had the complainant’s demeanour available to consider. As I will explain below, it would appear that what Mr. Gold referred to as the “stereo” effect of the complainant’s version of events, coupled with the excess emphasis the trial judge placed on the complainant’s demeanour, a topic to which I now turn, interfered with his ability to assess, in a balanced fashion, the evidence that was critical to the issues he had to determine.

2. Did the Trial Judge err by overly relying on the complainant’s demeanour in assessing her credibility?

[84] The trial judge’s error in receiving the videotaped statement for the truth of its contents brought with it the complainant’s demeanour as she provided her account of what happened. As I will explain, the trial judge attached considerable weight to her demeanour.

[85] Cases in which demeanour evidence has been relied upon reflect a growing understanding of the fallibility of evaluating credibility based on the demeanour of witnesses: see Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3d) 1 (C.A.), at para. 66; R. v. G. (P.), 2012 ONSC 4646, 104 W.C.B. (2d) 390, at paras. 31-33; 9129-9321 Quebec Inc. v. R., 2007 TCC 2, [2007] T.C.J. No. 23, at para. 31; R. v. Powell, [2007] O.J. No. 555, at paras. 9-10. It is now acknowledged that demeanour is of limited value because it can be affected by many factors including the culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom. One of the dangers is that sincerity can be and often is misinterpreted as indicating truthfulness.

[86] In R. v. G.(M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (C.A.), at p. 355, this court quoted with approval the following passage from Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), at pp. 356-57:

If a trial judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness.

For a trial judge to say "I believe him because I judge him to be telling the truth," is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind.

[87] This cautious approach to demeanour was echoed by the Alberta Court of Appeal in R. v. Pelletier (1995), 1995 ABCA 128, 165 A.R. 138, at para. 18, citing a 1973 paper by Justice MacKenna:

I question whether the respect given to our findings of fact based on the demeanour of the witnesses is always deserved. I doubt my own ability, and sometimes that of other judges, to discern from a witness’s demeanour, or the tone of his voice, whether he is telling the truth. He speaks hesitantly. Is it the mark of a cautious man, whose statements are for that reason to be respected, or is he taking time to fabricate? Is the emphatic witness putting on an act to deceive me, or is he speaking from the fullness of his heart, knowing that he is right? Is he likely to be more truthful if he looks me straight in the face than if he casts his eyes on the ground, perhaps from shyness or a natural timidity? For my part I rely on these considerations as little as I can help.

[88] A powerfully-worded and thoroughly-researched analysis of reliance on demeanour evidence can be found in the decision of the High Court of Australia in State Rail Authority of New South Wales v. Earthline Constructions Pty. Ltd. (1999), 160 A.L.R. 588. At para. 88, the Court says:

There is growing understanding, both by trial judges and appellate courts, of the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the courtroom. Scepticism about the supposed judicial capacity in deciding credibility from the appearance and demeanour of a witness is not new. In Societe D’Avances Commerciales (Societe Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The “Palitana”), Atkin LJ remarked that “an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.” To some extent, the faith in the judicial power to discern credibility from appearance was probably, at first, a consideration which the judiciary assumed that it inherited from juries. It was natural enough that trial judges, accustomed to presiding over jury trials, would claim, and appellate judges would accord, the same “infallible” capacity to tell truth from falsehood as had historically been attributed to the jury. Nowadays, most judges are aware of the scientific studies which cast doubt on the correctness of this assumption.[^2]

[89] I agree with the suggestion contained at the conclusion of the Court’s analysis in the State Rail Authority decision that it is important for trial judges to bear in mind that, to the extent possible, they should try to decide cases that require assessing credibility without undue reliance on such fallible considerations as demeanour evidence.

[90] With this in mind, I now turn to the manner in which the trial judge in this case relied on the complainant’s demeanour in assessing her credibility.

[91] It is of note that in analyzing the complainant’s evidence, the trial judge started with her demeanour as she gave her videotaped statement. He said:

She came across in the video as sincere and honest. She was clearly traumatized and was reduced to tears on several occasions. Every time she referred to how scared she was, how the accused really frightened her with his death threats and how she had not been sure whether she was going to make it out of there, she choked up, and genuine fear was evident in her voice.

What was most impressive was how she physically demonstrated the position that she was put in by the accused when he flipped her upside down. She was literally upside down on the chair in the interview room, as she tried to show Officer Crowther how it happened. The noise she made, when she described how she was squealing like a pig when the accused’s fingers were up her anus, was chilling. Equally, her description of the accused flicking his tongue like a lizard and making a hissing sound, were vivid and powerful. To use an overused phrase, those descriptions had the ring of truth. They are too strange and unusual, in my view, to have been invented.

She gave the impression of someone honestly trying to tell the truth and to be as helpful as she could to the investigation. After watching the video, the impression I was left with was one of conviction that she was describing something that really happened to her.

[92] Then, on a number of other occasions during his analysis leading to his conclusion that the complainant was telling the truth, the trial judge returned to his impression of the complainant’s demeanour. For example, he mentioned that her videotaped statement was “complete once again with tears and obvious signs of fear and emotional upset” and that “the emotions [the complainant] displays [in the videotaped statement] and in the 911 call are real and are not an act.”

[93] With respect, I am of the view that the reasons disclose that the trial judge took an overly confident view of his ability to assess the complainant’s credibility by reference to her demeanour. This reliance is particularly troubling in the circumstances of this case because the demeanour assessment was based on evidence that was not subjected to contemporaneous cross-examination, further weakening any possible value it had in assisting the trial judge evaluate the complainant’s credibility.

[94] In many cases, this error may not be of great moment. But here, it mattered. Combined with the error of admitting the videotaped statement for the truth of its contents, this error provided the backdrop against which the trial judge gauged the complainant’s and the appellant’s account of what transpired when they engaged in sexual activity in the car. As I will now discuss, I am of the view that this backdrop had an impact on the prism through which the trial judge assessed this pivotal evidence.

3. Did the Trial Judge err by applying a different level of scrutiny to the defence evidence compared to that of the Crown?

[95] The argument that a trial judge has applied a different level of scrutiny in assessing the evidence of the accused and the complainant, as Doherty J.A. noted in R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59, “is a difficult argument to make successfully.” In the same paragraph, Doherty J.A. counselled that:

It is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and the accused, or that he failed to expressly set out legal principles relevant to that credibility assessment. To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant.

[96] Subjecting the evidence of the defence to a higher or stricter level of scrutiny than the evidence of the Crown is an error of law: R. v. H.C., 2009 ONCA 56, 241 C.C.C. (3d) 45, at para. 62. In the event of such an error, the deference normally owed to the trial judge’s credibility assessment is generally displaced.

[97] In the recent decision in R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, at para. 39, this court reinforced the difficulty of meeting this standard:

The “different standards of scrutiny” argument is a difficult argument to succeed on in an appellate court. It is difficult for two related reasons: credibility findings are the province of the trial judge and attract a very high degree of deference on appeal; and appellate courts invariably view this argument with skepticism, seeing it as a veiled invitation to reassess the trial judge’s credibility determinations.

[98] For the appellant to succeed on this ground of appeal, he must be able to identify something clear in the trial judge’s reasons or in the record indicating that a different standard of scrutiny was applied – something sufficiently significant that the heavy door of deference is opened to the domain of the trial judge, where credibility is assessed.

[99] The question is whether the appellant has made out that difficult argument in this case.

[100] In my view, he has. The record reveals a number of instances where the trial judge drew adverse inferences about the appellant’s credibility, but did not do so with respect to the complainant’s credibility despite the fact that she repeatedly showed herself to be an unreliable witness.

[101] The following are examples demonstrating how the trial judge was overly critical of the appellant’s version of events:

1. The trial judge found it “perplexing” that the appellant spent money on his condoms thereby leaving himself with insufficient funds to have sexual intercourse. But, on the evidence, the plans of the appellant and complainant changed.

2. The trial judge found it difficult to believe the appellant that the complainant would agree to go to a place a considerable distance from her home. However, there is no allegation that the complainant was forcibly taken to the Ponds area. The complainant herself testified that she left it to the appellant to decide where to go. He told her his plans to go to the Ponds. After some initial reluctance, she responded, “okay, no problem”.

3. The trial judge was troubled by the appellant’s evidence that he was content to let the complainant masturbate him with her hand after spitting into it. He saw this as an inconsistency given the appellant’s evidence that he wanted to use protection and his acknowledgment that diseases can be transmitted through the mouth. However, the trial judge’s treatment of this evidence as inconsistent was not warranted. The appellant provided an explanation. He said he had never heard of the transmission of a sexually transmitted disease in this fashion. He thought he was safe. The Crown called no evidence that the appellant’s belief was wrong.

4. The trial judge had a major problem with what he viewed as the appellant’s having changed his evidence concerning where he and the complainant were positioned in the car. The trial judge described these changes as being the result of the appellant’s realizing that his description of what happened was physically impossible. However, in my view, the trial judge’s expectation relating to the degree of consistency and precision of the appellant’s evidence about what transpired in the car was unrealistic. It was unrealistic to expect the appellant to reconstruct, almost frame by frame, what happened. And it was not appropriate to assume the worst based on his unsatisfactory efforts to do so.

5. The trial judge found it difficult to believe that the complainant would try to get at the appellant’s wallet. The trial judge overlooked the complainant’s own evidence. She herself admitted to this.

[102] In contrast to this is the way the trial judge dealt with difficulties in the complainant’s evidence, without making a meaningful attempt to reconcile or explain them. For example:

1. The complainant gave three different versions surrounding being picked up by the appellant, what happened to her clothing in the car, and why she did not go to the hospital.

2. There were significant inconsistencies between the complainant’s evidence and that of Ms. Albert regarding whether there was a plan to rob the appellant, whether Ms. Albert got into the appellant’s car, and whether Ms. Albert indicated she saw things suggesting the appellant was a police officer.

3. There was no physical evidence to confirm the complainant’s version of events. The officers observed no fresh markings or bruising of any kind on the complainant’s head, even though she described being the victim of a brutal beating to her face, head, and neck area. There was also no physical evidence of sexual violation of the nature the complainant described. This lack of evidence arose because the complainant refused to go to the hospital for reasons that kept changing as she recounted her version of events. And the video of the complainant’s movements at the gas station showed no evidence of the dislocated shoulder to which the complainant attested.

4. The trial judge commented on the complainant’s admitting her criminal record, yet made no mention of the fact that in her evidence at the preliminary she initially left out certain convictions for crimes of dishonesty.

[103] In addition to not assigning sufficient weight to the weaknesses in the Crown’s case, the trial judge assigned too much value to what I see as its questionable factors.

[104] First, the trial judge placed considerable weight on the fact that much of the complainant’s evidence was confirmed by independent evidence. For example, he observed that parts of the complainant’s evidence were confirmed by the gas station surveillance videos, and the complainant was able to correctly describe the appellant’s physical appearance, gold necklace, and part of the license plate number of the appellant’s car. However, the complainant’s accuracy as to these details is not indicative of the credibility of her account regarding what transpired in the appellant’s car. The evidence of the complainant the trial judge found was supported by independent evidence was not confirmatory of the material aspect of the case – what happened in the car and whether the complainant consented to what did happen. In my view, it was inappropriate for the trial judge to place such emphasis upon the complainant’s ability to get the appellant’s appearance, necklace and car licence right.

[105] Moreover, the trial judge expressed how impressed he was with the complainant’s memory – for example, her recall of the necklace and of four digits of his licence plate. However, the complainant’s actual recollection of the necklace was quite general and she admitted to having used a mnemonic to help her mentally record the licence plate digits. I also note that the trial judge made no mention of the complainant’s self-confessed bad memory.

[106] These concerns lead me to conclude that the trial judge applied an unforgiving level of scrutiny to the appellant’s testimony but failed to adequately address the comparable problems apparent in the complainant’s evidence. Subjecting the evidence of the defence to a higher or stricter level of scrutiny than the evidence of the Crown constitutes an error in law.

CONCLUSION

[107] To conclude, the trial judge erred by admitting the videotaped statement for its truth, by overemphasizing the complainant’s demeanour, and by subjecting the appellant’s evidence to stricter scrutiny than that of the complainant. I mentioned earlier that these errors were interrelated. Their connection is apparent throughout the reasons, particularly in a passage toward the end where the trial judge notes that the complainant was prompted to go to the police station and give her videotaped statement “complete once again with tears and obvious signs of fear and emotional upset” and was prompted to “testify at the preliminary inquiry one year later when once again, she was tearful at times, as she described what happened to her”.

[108] In my view, these related errors infected the trial judge's treatment of the burden of proof and caused a miscarriage of justice within the meaning of s. 686(1)(a)(iii) of the Criminal Code.

DISPOSITION

[109] For these reasons, I would allow the appeal and set aside the convictions. In all the circumstances, it will be up to the Crown to consider whether it would be in the interests of justice to proceed with a new trial.

Released: May 27, 2015 (G.S.)

“Gloria Epstein J.A.”

“I agree G.R. Strathy C.J.O.”

“I agree David Watt J.A.”

[^1]: The common law has recognized that prior consistent statements can be admitted under a number of exceptions, including to help establish the narrative of the prosecution and to combat a suggestion of recent fabrication. None of the exceptions apply here.

[^2]: The following footnote appears at the end of the High Court of Australia’s reasons, outlining the authorities the Court relied upon to support its cautious approach to demeanour:

Trawl Industries v Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 348 per Samuels JA citing Re, “Oral v Written Evidence: The Myth of the ‘Impressive Witness’”, (1983) 57 Australian Law Journal 679; Australia, The Law Reform Commission, Evidence, Report No 26 Interim, (1985), vol 1 at pars 797-800. See also Wellborn, “Demeanour”, (1991) 76 Cornell Law Review 1075; Ellard, “A Note on Lying and its Detection”, (1996) 2 The Judicial Review 303; Giles, “The Assessment of Reliability and Credibility”, (1996) 2 The Judicial Review 281; Stone, “Instant Lie Detection? Demeanour and Credibility in Criminal Trials”, (1991) Criminal Law Review 821; Wells, “How adequate is human intuition for judging eyewitness testimony?” in Wells and Loftus (eds), Eyewitness Testimony, (1984) 256 at 272…