WARNING

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

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

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

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

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

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

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

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

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

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

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

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

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

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

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

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

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

Court Information

Court of Appeal for Ontario

Date: 2019-08-20

Docket: C61320

Panel: Pardu, Nordheimer and Harvison Young JJ.A.

Parties

Between

Her Majesty the Queen

Respondent

and

Michael Farouk

Appellant

Counsel

Mark Halfyard and Colleen McKeown, for the appellant

Luke Schwalm, for the respondent

Hearing and Appeal

Heard: February 27, 2019

On appeal from: the convictions entered by Justice Janet M. Wilson of the Superior Court of Justice, sitting with a jury, on May 26, 2014.

Decision

Harvison Young J.A.:

A. Overview

[1] The appellant attacked the complainant in the elevator of her apartment building in the early morning hours of May 25, 2013. He had followed her into the building after she was dropped off by friends with whom she had spent the evening. His entry into the building and the attack itself was largely captured by the building's surveillance cameras. At trial, the appellant was convicted by a jury of sexual assault, attempted choking with intent to overcome resistance to sexual assault, threatening bodily harm and three counts of breach of recognizance.

[2] The central issues at trial were (1) identity; and (2) whether the Crown had established that the assault was of a sexual character, sufficient to ground a conviction for both sexual assault and choking to overcome resistance.

[3] The appellant appeals from his convictions for sexual assault and choking to overcome resistance alone. He does not challenge those convictions on the basis of identity. Instead, he takes issue with the trial judge's instructions as to the evidence the jury could consider in determining whether the appellant applied force in circumstances of a sexual nature (on the sexual assault charge) and whether the appellant choked the complainant for the intended purpose of enabling him to commit the offence of sexual assault (on the attempted choking to overcome resistance charge).

[4] In particular, he argues that the trial judge erred in two main respects: (1) in instructing the jury it could consider evidence that the appellant had spoken with two young women at a nightclub earlier in the evening in determining whether the assault was of a sexual character; and (2) in admitting, and directing the jury it could consider, evidence that the appellant had called and texted a "body rub service" approximately 30 minutes after the assault in determining whether the assault was of a sexual character.

[5] I do not agree and would dismiss the appeal for the following reasons.

B. Factual Background

The Circumstances of the Assault

[6] After spending the night with some friends, the complainant returned to her apartment building in Scarborough shortly after 2:30 a.m. on May 25, 2013. The building's security camera footage showed the appellant follow the complainant into the vestibule of the building and then through doors only accessible by key fob. The complainant did not notice the appellant follow her into the building, as she was focused on her cellphone.

[7] The complainant entered the elevator and pressed the button for the 12th floor. The appellant followed her into the elevator, and pressed the button for the 14th floor. The complainant testified that, as the elevator doors were closing, the appellant told her she was "cute". She did not respond. She testified that the comment made her feel uncomfortable.

[8] Once the elevator doors closed, the appellant turned and moved in front of the complainant. He grabbed her by the neck with both hands, and began to choke her. The complainant fought back by kneeing the appellant repeatedly in the groin. She also repeated words to the effect of "if you let me go I won't tell anybody".

[9] The struggle lasted approximately 12 seconds, before the appellant released the complainant and backed away from her. The complainant testified that the appellant then threatened her, saying that if she told anyone "I'll fucking knock your teeth out" or "I'll fuck you and knock your teeth out." While she could not remember the appellant's precise words, the complainant testified that it was a "very clear threat".

[10] About 17 seconds (as documented by the security video) after the appellant released the complainant's neck, the elevator arrived at her floor. She fled the elevator, ran down the hall to her apartment, unlocked the door and collapsed inside on the floor.

[11] The complainant testified that during the assault, she was fearful that she would be raped or badly hurt. In cross-examination, she agreed that the appellant had not touched her buttocks, breasts, vaginal area, thighs, back or stomach, but explained that this was because she had immediately begun to knee the appellant in the groin when he began choking her.

The Appellant's Interactions with Women at the Nightclub

[12] Following the assault, the police released a "Crime-stoppers" statement, with still images of the attacker from the building's security footage, in an attempt to identify the attacker. Two individuals – Britany Munro and Daniel Drever – came forward and said that they recognized the perpetrator as being the appellant. Ms. Munro and Mr. Drever testified that they had seen the appellant at the same Pickering nightclub that they frequented on a number of occasions. They further testified that they saw him at the nightclub on May 24, 2013, before the assault, wearing clothes that matched the still images released by the police.[1]

[13] In particular, Ms. Munro testified that she had spoken briefly to the appellant on the night of May 24, 2013. Ms. Munro was on the patio area of the nightclub with a friend, smoking. The appellant approached her and asked her what she was smoking. She responded that it was an electronic cigarette. The appellant asked if Ms. Munro wanted to know what he was smoking. She said no, and the appellant walked away. She testified that the entire interaction lasted less than a minute.

[14] Through the appellant's phone records, the police were able to identify another bar patron – Chelsy McGhee – who had interacted with the appellant on the night of May 24, 2013. Ms. McGhee testified that she was standing with her friend on the patio of the nightclub, while her friend smoked, when they were approached by three men. She began talking with one man (later identified as the appellant). Ms. McGhee told the appellant that they were preparing to leave to go to another bar. Eventually, the appellant asked for Ms. McGhee's phone number, which she gave to him. The appellant also asked if he could share a cab with Ms. McGhee and her friend to the new bar. Ms. McGhee declined, but indicated that the appellant could text her later.

[15] The appellant's cellphone records – which were made an exhibit at trial – established that the appellant had exchanged a series of text messages and phone calls with Ms. McGhee between 12:39 a.m. and 2:33 a.m. The appellant and Ms. McGhee did not meet up. The next morning, Ms. McGhee texted the appellant and asked him not to contact her anymore.

[16] As with Ms. Munro, Ms. McGhee's evidence was led by the Crown to establish identity. The appellant's cellular phone records placed him near the complainant's building at the time of the assault. Thus, the Crown relied on Ms. Munro's evidence to prove that the appellant, and not someone else, was using his phone that night and that he had attended the nightclub on May 24, 2013.

Post-Assault Conduct and Communication with a "Body Rub" Service

[17] The jury also heard evidence that, approximately 30 minutes after the incident in the elevator, the appellant had exchanged a series of phone calls and text messages with a phone number associated with a "body rub" service.

[18] The appellant's cellphone records established that – between 3:15 a.m. and 3:50 a.m. – the appellant exchanged two phone calls and a total of 26 text messages – with a "647" number. In 2014, in the course of investigating the assault, the investigating officer performed "Google" searches for the "647" number and discovered it was associated with a website offering "body rub" services for money. The investigating officer also accessed historical website posts (dated April 2013 and October 2013) that suggested sexual services were available at the same "647" number. The Crown sought to lead this evidence through the investigating officer as evidence of the sexual character of the assault.

[19] The trial judge conducted a voir dire and admitted the evidence of the appellant's contact with the "647" number and the investigating officer's evidence as to the connection between the "647" number and the website. She found that this evidence was relevant to the appellant's intention at the time of the assault, and whether the assault was of a sexual character. The trial judge concluded that the probative value of the evidence outweighed its prejudicial effect. However, the trial judge found that a limiting instruction was necessary. She also directed that the jury would not be provided with the full "647" number, or shown the sexually explicit images on the website.

[20] Partway through trial – but before the evidence of the appellant's contact with the body rub service was put to the jury – the police recovered the contents of four text messages between the appellant and the "647" number. The text messages were of a sexually explicit nature, and included a response to an inquiry about pricing for sexual services.

[21] An additional voir dire was held. In response to the trial judge's suggestion that the recovered text messages were of increased probative value if the appellant continued to challenge the connection between the "647" number and the website, defence counsel conceded that the "647" number was connected to a body rub service. The trial judge ultimately excluded the contents of the text messages, finding that the prejudicial effect of the evidence outweighed its probative value.

[22] The evidence of the appellant's contact with the body rub service was led through the investigating officer at trial. She described her internet searches, testified that the "647" number was associated with a website entitled www.bodyrublist.com,[2] that the website contained a number of sexually explicit photos, offered "in calls and out calls for twenty four hours", contained the statement "fulfill your every needs and desires" and listed the "647" number as the contact information for the woman who would provide the services. She also described the frequency and timing of the appellant's communications with the "647" number. Again, the jury was not shown any images of the website, nor told about the content of the appellant's text messages to the "647" number.

[23] Prior to the investigating officer's testimony with respect to the appellant's contact with the body rub service, the trial judge provided a limiting instruction to the jury as to what use they could make of this evidence. She cautioned that the evidence was admissible and could only be considered by the jury "in assessing [the appellant's] intention and state of mind during the elevator incident." She noted that there was nothing illegal about communicating with a body rub service, and directed the jury that they could not punish him for having communicated with the service, nor conclude that because of the appellant's communication with the service he was the type of person more likely to have committed the offence. The trial judge repeated a similar limiting instruction in her final charge to the jury when describing the evidence of the appellant's communications with the body rub service.

The Jury Charge

[24] The appellant conceded at trial that if identity was established, he was guilty of the lesser offence of assault. Thus, on the sexual assault charge, if satisfied that the appellant was the attacker, the jury was required to determine whether the force that the appellant applied took place in circumstances of a sexual nature. On the attempted choking to overcome resistance charge, if satisfied that the appellant was the attacker, the jury was required to determine whether the appellant attempted to choke the complainant with the intent of rendering her incapable of resisting, and for the purpose of enabling him to commit the offence of sexual assault.

[25] In her charge to the jury, the trial judge correctly outlined the necessary elements of the offence of sexual assault. She indicated that if the jury was satisfied that the appellant was the individual who attacked the complainant in the elevator, the only element of the offence in dispute was whether the appellant applied force to the complainant in circumstances of a sexual nature. She (again correctly) instructed the jury that they must be satisfied beyond a reasonable doubt that a reasonable person, viewing the matter objectively, would conclude that the force was applied in circumstances of a sexual nature. She directed the jury to consider all of the circumstances surrounding the application of force, including the part of the complainant's body the appellant touched, any words or gestures that accompanied the touching, and the purpose of the touching.

[26] The trial judge then identified a number of points that the jury "may wish to consider" in determining whether the force was applied in circumstances of a sexual nature:

• Before the incident, the appellant was at a dance club, making contact with women, including Ms. McGhee and Ms. Munro.

• The complainant got a ride home with her friend, and would reasonably think she was safe when she was dropped off at the front door of her apartment building.

• The security camera footage confirmed that the appellant was sneaking into the building in a manner to avoid detection.

• The elevator incident occurred at 2:41 a.m. with no one else in sight.

• The complainant was 18 years of age, and the appellant 32 years of age, at the time of the incident.

• When the appellant got in the elevator, and before the door was closed, he told the complainant she was cute. The comment made her feel uncomfortable as she was in an enclosed space.

• When the elevator door closed, the appellant immediately put both his hands around her throat applying pressure in a choking manner. The complainant fought back by kneeing the appellant in the groin.

• The complainant conceded that the person did not touch her breasts, vagina or any traditional body part connoting sexual contact. The complainant testified that he wouldn't have been able to because she was fighting back so vigorously.

• An indication of the degree of physical force being used in the struggle was the observations of the complainant's hair flying around her head in the various photographs from the security camera footage.

• The appellant then let go of her neck and retreated. His hands were visible and the complainant can be seen holding her neck and wiping her mouth. The time of the retreat appeared to be 17 seconds, compared to the attack which was approximately 12 seconds.

• The complainant testified that she was terrified and thought that she was going to be very badly hurt or raped.

• The complainant begged the appellant to stop and repeatedly said no, and promised not to tell anyone if he let her go.

• According to the complainant's evidence, the appellant then told her that if she told anyone "he would fuck her and knock out her teeth" or that "he would knock her fucking teeth out".

• The complainant was terrified and afraid to go to the police after this statement by the appellant, and only agreed to report the incident after talking to her friends and grandmother.

• The complainant's cell phone and purse were clearly visible and the appellant did not try to rob her of any of these items. The motive for the attack was not monetary gain.

• The appellant came back to the building and attempted to access the building between approximately 3:02 and 3:09 a.m.

• For a period of approximately 35 minutes, beginning 6 minutes after the appellant left the apartment building for the final time and 36 minutes after the elevator incident, the appellant was in communication with a body rub service offering sexual services for money.

• The complainant was traumatized by the event, was unable to talk, unable to breathe, and was gasping for breath after she collapsed in a heap inside her apartment. Initially she was too afraid to report the incident to the police.

The instructions challenged by the appellant on this appeal are underlined, above.

[27] On the attempted choking to overcome resistance charge, the trial judge correctly identified all the necessary elements of the offence. She instructed the jury that, in determining whether the appellant attempted to choke the complainant with the intended purpose of enabling the appellant to commit the offence of sexual assault, the jury should consider "all of the surrounding circumstances". She then indicated the jury "may wish to consider" the same list of evidence enumerated above, in determining whether the attempt choking was for the intended purpose of enabling committing sexual assault.

C. Analysis

(1) Did the Trial Judge Err in Instructing the Jury It Could Consider the Evidence of the Appellant's Contact with Women at the Nightclub in Determining Whether the Assault Was of a Sexual Character?

[28] The appellant argues that the trial judge erred in instructing jury that it could use the fact that the appellant had been in conversation with women at a nightclub, prior to the assault, in assessing whether the attack was of a sexual character. The appellant emphasizes that the evidence of the appellant's interaction with women at the nightclub was led by the Crown, and was only relevant to establish identity. The trial judge's instruction that the jury could consider this evidence in determining whether the assault was of a sexual purpose was highly prejudicial, as it invited the jury to engage in propensity-based reasoning. As such, the prejudicial effect of this evidence greatly outweighed its probative value, and it should not have been left with the jury. The fact that the trial judge listed this as the first of the factors that the jury "may wish to consider" highlighted the evidence and heightened its prejudicial effect.

[29] The respondent submits that the inclusion of this among the 18 factors that the jury "may wish to consider" in her closing instructions was relevant to the appellant's statement of mind when he attacked the complainant later that evening, that the evidence was not prejudicial and that there was no risk that the jury would misuse the evidence through propensity-based reasoning. There was nothing coercive or threatening in the appellant's exchanges at the nightclub that would suggest he was a person of bad character.

[30] I would not give effect to this ground of appeal.

[31] To begin, I reiterate that appellant's complaint is not that the jury heard the evidence of the appellant's contact with women at the nightclub – as it was highly probative of the identity issue – but rather that the trial judge referred to it in her charge was one of the 18 factors that the jury "might want to consider" in determining whether the attack was sexual in nature.

[32] The probative value of evidence is a function of the extent to which it tends to prove an issue at trial. This requires the trial judge to engage in a preliminary weighing of evidence. Thus, in assessing the probative value of tendered evidence, the trial judge is to identify the issue in question and the strength of the inference sought to be drawn from the evidence, in light of the reliability of the evidence: R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, at paras. 94-95.

[33] Here, the evidence of the appellant's communications with women was left with the jury on the issue of whether the assault was of a sexual character. The test to be applied in determining whether an assault is of a sexual character is objective. The trier of fact must ask itself, "[v]iewed in the light of all of the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer": R. v. Chase, [1987] 2 S.C.R. 293, at p. 302. The circumstances to be considered include the part of the body touched, the nature of the contact, the situation in which the contact occurred, and any words or gestures accompanying the act, among other things. The intent or purpose of the person committing the act may also be a factor in considering whether the conduct was sexual, but it is only one factor to be considered in the analysis: Chase, at p. 302; R. v. Marshall, 2017 ONCA 801, at paras. 51-53.

[34] I am prepared to accept that the evidence of the appellant's contact with women at the nightclub was probative (if minimally so) of the appellant's state of mind and intent leading up to the assault. The fact that the appellant sought out interactions with Ms. Munro and Ms. McGhee in circumstances suggesting a sexual interest would make it more probable than not that his subsequent interaction with the complainant was an expression of sexual interest. This is particularly so when the appellant's conduct is viewed in context: he interacted with Ms. Munro and Ms. McGhee at the nightclub, continued to text Ms. McGhee up until the point he was outside the complainant's apartment building, and began his interaction with the complainant by telling her she was "cute".

[35] The appellant's objection to this evidence at trial – and argument on appeal – is that this evidence invited the jury to engage in propensity-based reasoning. In other words, the jury might reason that because the appellant was the "type" of person who would try to "pick-up" women at a bar, he was more likely to have assaulted the complainant for a sexual purpose. I disagree. On the facts of this case and in the context of the trial judge's jury charge as a whole, the inclusion of the appellant's contact with the women at the nightclub as a consideration relevant to whether the attack was sexually motivated did not invite the jury to engage in propensity-based reasoning nor did it result in moral or reasoning prejudice.

[36] First, the trial judge organized her recitation of the evidence that might the jury "may wish to consider" in assessing whether the assault was of sexual character temporally. The appellant began his night at the nightclub, where he spoke with Ms. Munro and Ms. McGhee; thus it was a logical place for the trial judge to start in her review of the evidence. The reference to this evidence was only one of 18 factors that the trial judge suggested the jury "may wish to consider." Her instruction did not elevate the importance of this evidence.

[37] Second, I do not agree that, in this day and age, a jury would reason that a young man who encounters, speaks with, and obtains telephone numbers from women at a dance club is someone likely to commit violent sexual assaults. There was nothing coercive or threatening about the appellant's conduct at the dance club. The appellant's conduct was perfectly legal and, on Ms. Munro's evidence, fairly typical of nightclub goers. This significantly diminished the risk of moral and/or reasoning prejudice.

[38] Third, while the trial judge did not provide a limiting instruction as to the use that the jury could make of the appellant's contact with women at the nightclub (nor was one requested), she did provide a limiting instruction with respect to the evidence of the appellant's communications with the sexual body rub service. Thus, the jury was warned generally about the dangers of propensity-based reasoning.

[39] As a result, I am not satisfied that the probative value of the evidence was outweighed by its prejudicial effect, or that it was an error to leave this factor with the jury.

(2) Did the Trial Judge Err in Admitting the Evidence of the Appellant's Post-Offence Communication with a "Body Rub" Service?

[40] The appellant also argues that the trial judge erred in instructing the jury that, in determining whether the assault was of a sexual character, they could consider the evidence that the appellant had communicated with a sexual body rub service approximately 30 minutes after the assault. He argues the trial judge erred in admitting this evidence because: (1) the prejudicial effect of the evidence outweighed its probative value; and (2) the evidence was inadmissible hearsay. I consider both arguments, below.

(i) Did the Prejudicial Effect of the Evidence Outweigh Its Probative Value?

[41] The appellant argues that the evidence of the appellant's communications with the service was minimally probative of whether the assault was of a sexual character, as the communications occurred more than 30 minutes following the assault. On the other hand, the evidence raised a significant risk of moral prejudice. The appellant argues that the limiting instructions provided by the trial judge were not sufficient to cure this prejudice, and that the evidence should not have been left with the jury.

[42] The respondent submits that the trial judge correctly admitted the evidence of the appellant's communications with a body rub service roughly 30 minutes after the attack. The respondent further submits that the appellant's communications with the body rub website were probative of his intention and state of mind at the time of the assault.

[43] I agree with the trial judge's conclusion that the evidence of the appellant's communications with the sexual body rub service was probative of the issue of whether the assault was of a sexual character. A brief chronology is helpful to situate the evidence as to the appellant's communications with the body rub service within the series of events on May 25, 2013, and to demonstrate its relevance to the sexual character of the assault.

[44] The incident in the elevator occurred between 2:39 a.m. and 2:41 a.m. The appellant left the building shortly thereafter. Between 2:47 a.m. and 2:57 a.m., the appellant made three phone calls to various taxi companies. At 3:02 a.m., the appellant re-entered the main foyer of the apartment building. On security camera footage, he could be seen trying to use the keypad of the building's intercom system. At 3:07 a.m., while still inside the foyer of the building, he made another call to a taxi company.

[45] The appellant's cellphone records established that – between 3:15 a.m. and 3:50 a.m. – the appellant exchanged two phone calls and a total of 26 text messages – with a "647" number. As I have noted above (and will return to in the my discussion of the "hearsay" nature of the evidence) the investigating officer was able to connect the "647" number to a website offering sexual "body rub" services for money by conducting "Google" searches and accessing historical website posts.

[46] In this context, the evidence of the appellant's communications with the body rub service were significantly probative of the sexual character of the assault. In particular, it was probative of the appellant's intention or purpose at the time of the assault. The appellant's communications with the body rub service give rise to the common sense inference that the appellant was interested in engaging in a sexual encounter. Given the temporal proximity between the assault, the appellant's attempt to regain entry into the apartment building and the communications with the body rub service, this evidence gives rise to the further common sense inference that the appellant's intention or purpose was to engage in a sexual encounter at the time of the assault.

[47] I agree with the appellant's submission that the evidence of his communications with the body rub service was prejudicial – in the sense that it raised the risk of both reasoning and moral prejudice. There was a risk that the jury would engage in propensity-based reasoning, and conclude that because the appellant was "type" of person who would pay for a sexual encounter, he was more likely to have sexually assaulted the appellant. Similarly, while the appellant's communications with the body rub service were legal, paying for a sexual encounter may be perceived as immoral behaviour.

[48] However, the trial judge was alive to the potential prejudicial effect of this evidence. She ordered that the jury would not be shown any sexually explicit images from the website. She refused to admit the contents of the appellant's text messages, which contained sexually explicit language and a discussion of pricing.

[49] The trial judge also provided a comprehensive mid-trial limiting instruction and final instruction that addressed all the necessary elements of such an instruction: see R. v. J.A.T., 2012 ONCA 177, 288 C.C.C. (3d) 1 at para. 53; R. v. Largie, 2010 ONCA 548, 101 O.R. (3d) 561, at para. 107. The trial judge identified the evidence at issue (the evidence of appellant's communications with the body rub service), told the jury that they could use the evidence only to assess the appellant's intention and state of mind at the time of the elevator assault (the permitted use), and expressly instructed the jury that they could not "punish" the appellant for this behaviour or engage in propensity-based reasoning (the impermissible use).

[50] In these circumstances, I am satisfied that it was appropriate to admit the evidence of the appellant's communications with the text messages with the body rub service. The communications were significantly probative of the sexual character of the assault, and the potential prejudicial effect of the evidence was adequately addressed through the trial judge's limiting instructions. I would note in this regard that our jury system is predicated on the proposition that jurors follow a trial judge's limiting instructions: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 56. I am also mindful of the principle that a trial judge's weighing of probative value and prejudicial effect is entitled to significant deference – as the trial judge is generally better positioned to understand the likely impact of the evidence on the jurors: R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581, at para. 31.

[51] As such, I would not give effect to this ground of appeal.

(ii) Was the Evidence of the Appellant's Communications Inadmissible Hearsay or Unauthenticated Real Evidence?

[52] The appellant argues that the evidence of the appellant's communications with a body rub service was based on inadmissible hearsay, as the Crown sought to rely on the truth of the website's contents – i.e. that the "647" number was in fact connected to a sexual service because it was listed on the impugned website. The appellant also argues that the contents of the website – as described by the investigating officer – was unauthenticated real evidence.

[53] The respondent submits that this evidence was not introduced for the truth of its contents because the relevance of the evidence was that a person reading or accessing the website would believe that sexual services would be provided. Similarly, the respondent takes the position that the contents of the website was not unauthenticated real evidence. The jury did not in fact receive any real evidence, as the trial judge ruled the screenshots of the website were inadmissible. The investigating officer only generally described the website, and testified that the "647" number was associated with sexual body rub services.

The Website Contents as "Hearsay"

[54] First, I do not agree that the evidence of the appellant's communications with the body rub service was based on inadmissible hearsay. The relevance of the investigating officer's evidence that the same "647" number the appellant was in communication with on the night of the assault was connected to a website offering sexual services did not depend on the truth of the website's contents. Stated differently, the probative value of the evidence did not depend on the fact that the "647" number was actually connected to the provision of sexual services, but rather that a person who accessed the website would believe the "647" number to be connected to the provision of sexual services. The related inference is that a person in communication with the "647" number – such as the appellant – would believe they were communicating with a sexual body rub service.

[55] On appeal, the appellant argues that the trial Crown's emphasis in her closing submissions as to the number of exchanges and length of time over which the appellant communicated with the "647" number belies any suggestion that the relevance of this evidence was only that the appellant believed he was communicating with a sexual body rub service. I do not agree. The Crown's arguments with respect to the frequency and duration of the communications are not inconsistent with its position that the appellant need only believe that "647" number he was communicating with was connected to a sexual service. The frequency of the appellant's communications with the "647" number supported the inference that he was committed to obtaining sexual services – and had not accidentally made contact with the "647" number – which in turn strengthened the inference that the appellant's motive or intention was to seek out a sexual encounter when he assaulted the complainant. To the extent this argument also supported the inference that the sexual services were actually available at the "647" number, this did not depend on the purported hearsay quality of the website's contents.

[56] Moreover, the defence conceded at trial – for legitimate strategic reasons – that the "647" number was associated with a sexual body rub service. The defence did so in the context of the continuing voir dire on the admissibility of the contents of the appellant's four recovered text messages. Those text messages tended to show, at the very least, that the appellant believed he was in communication with a sexual body rub service and was attempting to obtain sexual services.

[57] The trial judge, correctly in my view, identified that the contents of the text messages acquired greater probative value if the defence continued to contest the connection between the "647" number and the sexual services. As she noted in her voir dire ruling, it seemed "glaringly obvious based on the contents of the text messages" that the "647" number "was in fact a body rub service."

[58] In these circumstances, there is no merit to the argument that the fact of the communications between the appellant and the body rub service shortly after the assault was based on inadmissible hearsay. The appellant conceded that the "647" number was in fact connected to the website, and clearly did so for legitimate strategic reasons. Moreover, the relevance of the investigating officer's evidence that the same "647" number the appellant was in communication with on the night of the assault was connected to website offering sexual services did not depend on the truth of the website's contents.

The Website Contents as Unauthenticated Real Evidence

[59] Second, I do not agree that the website contents were unauthenticated real evidence. While s. 31.1 of the Canadian Evidence Act, R.S.C. 1985, c. C-5, provides that any person seeking to admit an electronic document as evidence has the burden of proving its authenticity, the website contents were not actually adduced as real evidence at trial. Rather, the trial judge ruled the screenshots of the website inadmissible on the basis that the probative value of such evidence was outweighed by its prejudicial effect, due to the sexually explicit language and photos depicted. The investigating officer testified – in general terms – as to the contents of the website and its association with the "647" number. While the process by which the investigating officer connected the "647" number to the website was properly the subject of cross-examination and submissions as to the weight that could be afforded to her evidence, it was not a bar to the admissibility of her testimony.

[60] Even if the website contents were to be construed as real evidence actually adduced at trial, the investigating officer's testimony would appear sufficient for the purpose of authentication. The threshold for authentication of evidence, both at common law and under s. 31.1 of the Canadian Evidence Act, is modest: there must be evidence that is capable of supporting a finding that the electronic document "is that which it is purported to be": R. v. C.B., 2019 ONCA 380, at para. 68. Both circumstantial and direct evidence may be relied upon for this purpose: C.B., at para. 68. Here, the investigating officer described her "Google" search for the "647" number and the website in general terms. In the circumstances, this would have been sufficient for the purpose of authentication. In light of the appellant's concession at trial that the telephone number to which he sent text messages was associated with the website for the body rub service and the operation of that business, no further authentication was required in any event.

Disposition

[61] For the foregoing reasons, I would dismiss the appeal.

Released: August 20, 2019

"GP"

"Harvison Young J.A."

"I agree G. Pardu J.A."

"I agree I.V.B. Nordheimer J.A."

Footnotes

[1] Ms. Munro and Mr. Drever's evidence was led by the Crown to establish identity, which was a live issue at trial. Their recognition evidence was the subject of a voir dire at trial and ruled admissible by the trial judge.

[2] The investigating officer provided the name of the website in her testimony, even though the trial judge had earlier stated that the website's name should not be put before the jury.

[3] At the pre-charge conference, defence counsel objected to the inclusion of the appellant's contact with women at the nightclub as evidence the jury could consider in determining whether the assault was of a sexual character. Defence counsel argued that this evidence could lead to propensity-based reasoning. The trial judge dismissed the objection, and left the evidence with the jury.