COURT OF APPEAL FOR ONTARIO

CITATION: R. v. A.V., 2020 ONCA 58
DATE: 20200129
DOCKET: C64964

Pardu, Brown and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.V.

Appellant

Anthony Moustacalis, for the appellant

Adam Wheeler, for the respondent

Heard: January 9, 2020

On appeal from the conviction entered on October 19, 2017 and the sentence imposed on February 9, 2018 by Justice Grant R. Dow of the Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1] The appellant was convicted of sexual interference, sexual exploitation, and sexual assault against the complainant, his stepdaughter. The complainant alleged that, over a period of several years beginning when she was in grade six or seven, the appellant required her to massage and crack his back. This occurred while the appellant lay on his bed. The complainant testified that the appellant touched her thighs and vagina once her brother left the room.

[2] The offences were alleged to have occurred while the complainant’s mother was at work. The complainant alleged that on one occasion, the appellant applied lotion to her legs and licked her vagina. She also alleged that the appellant touched her vagina through her jeans as they were watching a movie in a hotel room, while the complainant’s mother was taking a shower.

[3] The appellant informed the court that his request for leave to appeal sentence was abandoned.

[4] The appellant raised several grounds of appeal against conviction in his factum, but focused on two issues at the hearing. The appellant says that the trial judge erred in admitting prior consistent statements and erred in relying on those statements for the proof of their contents.

[5] We have concluded that the prior consistent statements were properly admitted. However, as we will explain, we accept the appellant’s argument that the trial judge erred in relying on the prior consistent statements as proof the offences occurred.

[6] Accordingly, the appeal is allowed for the following reasons.

Prior consistent statements were admitted properly

[7] The trial judge admitted evidence from a childhood friend of the complainant who testified that, when they were in grade six or seven, the complainant had told her that the appellant had come into her bedroom and assaulted her, and that they had discussed it a number of times after that. The complainant’s high school boyfriend testified that around 2012, while they were watching a movie that concerned sexual abuse, the complainant told him that the appellant had abused her.

[8] The appellant says that there was no allegation of recent fabrication that justified the admission of this evidence.

[9] We disagree.

[10] It is clear that trial counsel for the appellant put the question of recent fabrication in play in the course of cross-examining the complainant. In particular, he suggested that she had made up the allegations because she was upset with certain events in her home life; that she was saying nasty things about the appellant because it was a way of getting back at the appellant and her mother; and that she got the idea to make allegations against the appellant from watching a movie with her boyfriend.

[11] As a result, it was open to the trial judge to use the complainant’s prior consistent statements to address the recent fabrication allegation and the suggestion that the complainant had a motive to lie about the appellant.

[12] The evidence of the complainant’s childhood friend was inconsistent with the complainant’s, in that the friend said that the complainant told her the abuse occurred in her bedroom rather than in the appellant’s bedroom, but the trial judge explained why he considered this a minor detail. This was the trial judge’s call to make, and there is no basis to interfere with it on appeal. Although the childhood friend testified that the complainant spoke of a single incident rather than multiple incidents, as alleged by the complainant, her evidence was called in order to rebut the recent fabrication/motive to lie allegation, rather than to corroborate the complainant’s evidence. No further analysis was required.

The W.(D.) analysis

[13] The appellant argues that the trial judge erred in his W.(D.) analysis by relying on the prior consistent statements for their truth in corroborating the complainant’s evidence.

[14] We agree, and allow the appeal on this basis.

[15] The trial judge properly instructed himself as to the requirements from R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, and provided reasons for rejecting the evidence of the appellant and for finding that the appellant’s evidence did not raise a reasonable doubt. He recognized that his rejection of the appellant’s evidence was insufficient to establish guilt beyond a reasonable doubt and went on to consider the evidence as a whole.

[16] This case turned on credibility. The trial judge was entitled to use the evidence of the complainant’s prior consistent statements to rehabilitate her credibility, given the motives to lie and recent fabrications that trial counsel attributed to her. But once this was done, the trial judge had to determine that her evidence was credible without relying on the prior consistent statements for proof of their contents to corroborate the complainant’s evidence.

[17] The key passage in the decision is this:

Counsel for [the appellant] also submitted to me that disbelief of the accused’s evidence does not satisfy the burden of proof beyond a reasonable doubt. Again, I entirely agree. However, the vast majority of sexual assault prosecutions turn on the evidence of the two witnesses involved in the conduct alleged. Here there is not only evidence of [the complainant] about what occurred, but that she revealed it to a senior elementary school friend, her first boyfriend, her aunt, and her mother before going to the police. This reinforces my being satisfied beyond a reasonable doubt of the sexual contact and of the elements of the offences charged having occurred. [Emphasis added.]

[18] The Crown submits that this passage must be read in light of the totality of the evidence and the rest of the trial judge’s analysis. The Crown says that the W.(D.) analysis was complete when the judge made these statements and the only issue remaining was whether the complainant’s evidence was credible or a fabrication. The trial judge had earlier concluded that the complainant’s evidence was reliable. According to the Crown, the trial judge used the prior consistent statements to neutralize the allegation of recent fabrication, allowing him to find that the complainant’s evidence was credible and so conclude that the appellant’s guilt had been established beyond a reasonable doubt.

[19] The difficulty with this analysis is that the trial judge’s reasons say otherwise. The trial judge specifically states that the complainant’s having revealed the abuse to several people – her friend, her boyfriend, her aunt, and her mother – “reinforces my being satisfied beyond a reasonable doubt”.

[20] This statement cannot fairly be read as limited to the rehabilitative effect of the prior consistent statements on the complainant’s credibility — a proper use to which the statements could have been put. The trial judge does not refer to the complainant’s alleged motive to lie or the recent fabrication allegation in discussing the prior consistent statements. Instead, after having said that most cases turn on the evidence of the two witnesses involved in the conduct alleged, the trial judge refers to the statements as reinforcing his conclusion that the offences occurred. In other words, the trial judge considered that this case was unusual in that there was evidence beyond that of the complainant and the appellant on which he could base his decision. This statement shows that, in determining whether the offences were proven beyond a reasonable doubt, the trial judge relied on the complainant’s prior consistent statements for the truth of their contents, to corroborate the complainant’s evidence. That is an impermissible use of the statements, as R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 at para. 36 makes clear. See also R. v. J.A.T., 2012 ONCA 177, 290 O.A.C. 130, at paras. 97-100.

[21] Accordingly, the appeal is allowed and a new trial is ordered on all counts.

“G. Pardu J.A.”

“David Brown J.A.”

“Grant Huscroft J.A.”