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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).

(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.

(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

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an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(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.

(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); 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.

(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

DATE: 20211201 DOCKET: C67959

Feldman, van Rensburg and Coroza JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

J.F. Appellant

Counsel: Kristin Bailey, for the appellant Jennifer Epstein, for the respondent

Heard: November 3, 2021 by video conference

On appeal from the conviction entered by Justice Myrna L. Lack of the Superior Court of Justice, sitting with a jury, on April 5, 2018.

REASONS FOR DECISION

Overview

[1] After a trial by judge and jury, the appellant was convicted of assault causing bodily harm. The appellant appeals from his conviction. He has abandoned the appeal against his sentence.

Brief Summary of Facts

[2] The appellant and the complainant were in a long-term relationship. Around 12:30 p.m. on January 30, 2017, the complainant called 911 to report that the appellant had choked her. The police responded to the call and arrested the appellant.

[3] The complainant went to the hospital and photos were taken of her injuries. The complainant disclosed to the nurse that the appellant had choked her. The nurse examined the complainant and observed that she had numerous bruises and abrasions on her face and body. The nurse did not detect any signs of impairment.

[4] After leaving the hospital, the complainant attended a police station and provided a videotaped statement. In that statement, the complainant told the police that she had an argument with the appellant over money. After the complainant swore at the appellant, the appellant grabbed her from behind, choked her and then sexually assaulted her. In that statement, she told the police that she had called 911 and that she went to her daughter’s residence. She told the police that she had told her daughter about being choked. However, the complainant told the police that she had not disclosed the sexual assault to either her daughter or the nurse at the hospital.

The Complainant Recants

[5] At the preliminary hearing and the trial, the complainant recanted all of the allegations. At trial, the complainant testified that she had spent the weekend consuming drugs and that she had a poor recollection of the events. She testified that on the morning of the incident, the appellant came to her house while she was still under the influence of the drugs. She yelled at the appellant, tried to punch him, and then lost consciousness. When she awoke, she was sitting on the floor against the couch and the appellant was tending to her. She and the appellant then had consensual sex. The complainant testified that she did not recall calling 911 or going to her daughter’s residence, the hospital, or to the police station.

[6] The trial judge made several rulings.

[7] The appellant’s previous conviction for assaulting this complainant – a guilty plea to assault causing bodily harm in 2012 – was admitted for the purpose of helping the jury understand the nature of the relationship between the appellant and the complainant and to support the inference of animus.

[8] The 911 call was admitted not for the truth of its contents but only to help the jury assess the complainant’s credibility.

[9] Finally, the complainant’s police statement was admitted for the truth of its contents.

[10] The appellant advances three grounds of appeal:

1. The trial judge erred in not instructing the jury on prior consistent statements;
2. The trial judge erred in admitting prior disreputable conduct evidence; and
3. The trial judge erred in admitting the complainant’s statement to the police.

[11] For the reasons that follow, we dismiss the appeal.

(1) No “Prior Consistent Statement” Instruction

[12] The appellant argues that the trial judge should have given a limiting instruction on the use of prior consistent statements because there was a real danger that the jury would have looked to the complainant’s prior statements before she spoke to the police as confirmatory of her statement to the police because they were all consistent. A “prior consistent statement” instruction is given to warn jurors that consistency between statements made by a complainant, on its own, provides no insight into the credibility of the complainant because repetition does not make a statement more likely to be true. The appellant acknowledges that his trial counsel did not ask for this limiting instruction, but nevertheless argues that it was required in this case.

[13] In our view, the trial judge did not err by failing to give such an instruction. There was no real risk in this case that the jury would err in its reasoning, namely, by finding the complainant was telling the truth in the police statement about being choked because it was consistent with what she had told people earlier.

[14] First, the Crown did not argue at trial that the consistency of the complainant was a factor to consider in assessing the complainant’s credibility. The consistency of the complainant’s statements was not a live issue at trial, and it was not necessary for the trial judge to comment or provide an instruction that would highlight the consistency of the complainant’s statements. This case is not similar to the cases cited by counsel for the appellant where the consistency of the complainant’s account was at risk of being used to bolster the complainant’s credibility or corroborate the complainant’s trial testimony: see e.g., R. v. Warren, 2016 ONCA 104, 26 C.R. (7th) 390; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788.

[15] Second, the trial judge provided thorough mid-trial and final instructions to the jurors on prior inconsistent statements. The trial judge explained that the jury could only use prior inconsistent statements to assess credibility and could not use the complainant’s earlier statements, such as the 911 call, as evidence of what actually happened unless they were satisfied that the complainant accepted the earlier version as true. Of course, the complainant had recanted her prior statements and did not adopt them during trial. The jury would have understood that the prior statements (specifically, the 911 call and the police statement) were diametrically opposed to the complainant’s trial testimony and that only the inconsistency could be used to assess her credibility.

[16] Third, in another area of her charge, the trial judge specifically instructed the jury that it should only rely on the police statement if the contents of the statement were confirmed by evidence not connected to the complainant. The jurors would have understood that they needed to seek out independent evidence of confirmation of the police statement before they could act on it. Logically, prior statements made by the complainant were not independent sources of confirmation and would not have been improperly used by the jury.

[17] The adequacy of a trial judge’s instructions must be assessed in the context of the particular case on a functional basis. There was no realistic risk that the jury would have looked for confirmatory evidence in any consistencies between the earlier statements to find that the complainant must have been telling the truth in the police statement. The fact that defence counsel did not ask for the specific instruction, now sought on this appeal, demonstrates that the trial counsel was not concerned about the risk that is now complained of by counsel for the appellant.

(2) Admitting Prior Disreputable Conduct

[18] The appellant submits that the trial judge erred by admitting evidence of the appellant’s prior assault of the same complainant. We do not accept this submission.

[19] The details of the prior assault were admitted for the purposes of understanding the nature of the relationship between the appellant and the complainant and to determine whether the appellant had animus toward the complainant. The trial judge held that the two incidents were similar in that they showed the appellant’s disposition to assault the complainant when she disrespected him.

[20] The trial judge noted that, “for the jury not to know about the prior assault would present an artificially sanitized and antiseptic picture of the nature of the relationship” between the two. The trial judge also found that there was little danger of moral prejudice if an appropriate caution was given. In our view, the prior conviction is probative of the nature of the relationship between the appellant and the complainant and was properly admitted, especially in light of the trial judge’s caution to the jury that they must not use the prior conduct to conclude that the appellant is a person of general bad character who was more likely to commit the alleged assault.

(3) Admitting the Complainant’s Police Statement

[21] The trial judge ruled that the complainant’s police statement was admissible pursuant to the principled exception to the hearsay rule enunciated in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787. Given the complainant’s recantations, the necessity component of the exception was made out and conceded. The trial judge ruled that the statement was procedurally reliable because (a) the complainant knew the statement was being recorded; (b) she gave the statement under a solemn affirmation to tell the truth; (c) her statement appears to be voluntary; and (d) the complainant was a witness at trial and available for cross-examination, and it was not fatal to the admissibility of the statement that the complainant later claimed a lack of memory. The trial judge found that the probative value of the statement was “extremely high” because it was a statement from the alleged victim made very soon after the alleged events. The trial judge found that its probative value highly outweighed its prejudicial effect and admitted the statement for the truth of its contents.

[22] The appellant argues that because the complainant claimed to have no memory of the majority of the weekend, calling 911, going to the hospital, or making the statement to police, defence counsel could not cross-examine the complainant effectively at trial and the trial judge erred in finding the contrary.

[23] In our view, the trial judge grappled with this issue and found the opportunity to cross-examine the complainant was not illusory. She found that, while the complainant claimed no memory of making the statement, the complainant did have a memory of the events of the morning in question. She also found that the appellant’s trial counsel had shown that he could effectively cross-examine the complainant on a prior voir dire.

[24] The admissibility of hearsay evidence is a question of law. The factual findings that go into that determination are entitled to deference. A trial judge is well placed to assess the hearsay dangers in a particular case and the effectiveness of any safeguards to assist in overcoming them: see R. v. Chretien, 2014 ONCA 403, 309 C.C.C. (3d) 418, at paras. 43-55. We would defer to the trial judge’s decision in the absence of any error.

Conclusion

[25] For these reasons, the appeal is dismissed.