His Majesty the King v. Gordon Morin, 2024 ONCA 562

Court of Appeal for Ontario Date: 2024-07-17 Docket: C69961

Before: Benotto, Coroza and Dawe JJ.A.

Between: His Majesty the King, Respondent and Gordon Morin, Appellant

Counsel: Gordon Morin, acting in person Megan Stephens, appearing as duty counsel Frank Au, for the respondent

Heard: April 10, 2024

On appeal from the conviction entered on May 26, 2021, and the sentence imposed on October 15, 2021 by Justice Michelle O’Bonsawin of the Superior Court of Justice.

By the Court:

[1] The appellant was charged on a multi-count indictment charging him with abuse against his domestic partner, A.B. The charges consisted of one count of aggravated assault; four counts of assault causing bodily harm; three counts of assault with a weapon; six counts of common assault; and one count of uttering a death threat. After a trial at which the appellant represented himself, the trial judge found him guilty as charged on fourteen counts. [1] She later sentenced him to three years’ imprisonment.

[2] The appellant appeals against his conviction and sentence. He represented himself on appeal, with the able assistance of duty counsel, Ms. Stephens.

[3] For the following reasons, we would allow the conviction appeal based on Ms. Stephens’s argument that the trial judge erred by using text messages sent by the complainant to the appellant as confirming her trial testimony and contradicting his evidence.

A. Factual background

[4] The complainant and the appellant met on a dating site in 2012 and moved in together a few months later. They cohabited until the fall of 2015, when the complainant moved out. She made a police complaint a few months later.

[5] This was a two-witness case, with the complainant testifying for the Crown and the appellant testifying in his own defence. The appellant represented himself, but counsel was appointed under s. 486 of the Criminal Code to cross-examine the complainant.

[6] The complainant testified that during the years that she and the appellant lived together he became increasingly physically and verbally abusive. She testified that he assaulted her on multiple occasions, as well as uttering death threats against her. She also accused him of controlling behaviour, including preventing her from accessing her mail, and of running up debts on her credit cards.

[7] The complainant described one incident in 2013 when the appellant pushed her into a flight of stairs. This was the basis for the common assault charge in Count 8.

[8] The most serious assault the complainant described was said to have occurred in November 2013. She alleged that on this occasion the appellant threw a glass of water at her, which broke, and then ground her legs into the broken glass, cutting her severely. She received medical attention for her injuries but told the doctors and nurses that she had cut herself accidentally. This was the basis for the aggravated assault charge in Count 15, and for two charges of assault with a weapon, with the weapon particularized as the glass in Count 2, and as the water in Count 13.

[9] The complainant also testified that in the fall of 2014 there was an altercation during which the appellant pushed her on the basement stairs, causing her to cut her shoulder on the handrail. This was the basis for one of the assault causing bodily harm charges (Count 5). She testified that a few months later, in the winter of 2015, there was another incident in which the appellant hit her in the face multiple times after she confronted him about finding pornography on his cell phone. This was the basis for one of the common assault charges (Count 11).

[10] The complainant also described a later incident in May 2015, when she told the appellant during an argument that she was “looking forward to dying” in order to be free of him. He responded by picking her up by the neck, strangling her, and saying: “You wanna die? Well you’re gonna die and it’s gonna happen now.” This was the basis for one of the common assault charges (Count 12) and for the uttering death threats charge (Count 6).

[11] The complainant also testified about an incident in August 2015, after they had separated but before she moved out, when the appellant threw a credit card in her face, which cut her. This was the basis for another of the assault with a weapon charges (Count 7) and for one of the assault causing bodily harm charges (Count 14).

[12] More generally, the complainant testified that the appellant regularly yelled at her, broke things around the house, and threw water at her. It is not entirely clear from the trial judge’s reasons exactly how she mapped these allegations onto the remaining three assault charges, Counts 1, 9 and 10, which all covered overlapping time periods in 2013. However, Crown counsel took the position that Counts 9 and 10 should be understood as applying to two particular assaults the complainant situated in the summer of 2013, and that the broadly-framed charge in Count 1 should be understood as capturing the complainant’s more generalized allegations of repeated assaults between January and September 2013.

[13] For the most part, the appellant denied that he had ever assaulted the complainant in the manner that she alleged, although in cross-examination he acknowledged that there might have been one time when he threw water in her face. He also acknowledged that during the August 2015 incident he had flicked a credit card and that it had hit the complainant in the face, but maintained that this had been accidental.

[14] The appellant’s explanation for the complainant’s November 2013 injuries was that he had accidentally dropped a glass of water, and the complainant had then slipped on the wet floor and fallen onto the broken glass.

[15] The appellant denied intentionally breaking any furniture, but described two occasions in which he or the complainant had broken things around the house by accident.

[16] During the appellant’s testimony, he sought to put into evidence a voluminous series of text messages that he had exchanged with the complainant during the years of their relationship. After discussions about their relevance, and the fact that s. 486 counsel had not put them to the complainant during cross-examination, the trial judge permitted the appellant to adduce a number of collections of text messages as exhibits. Additional text messages were then adduced by Crown counsel during her cross-examination of the appellant.

[17] The trial judge concluded that the complainant was entirely credible, and rejected the appellant’s evidence as wholly unbelievable and not raising a reasonable doubt in her mind.

B. Analysis

[18] For the appellant, Ms. Stephens focuses on the trial judge’s use of some of the text messages that had been put into evidence by the defence. At several different points in her reasons, the trial judge referred to some of the text messages sent by the complainant as either corroborating her in-court evidence, or as contradicting the appellant’s trial testimony. Ms. Stephens contends that this reflects a legal error.

[19] Since this was a two-witness case, much depended on the trial judge’s assessment of the respective testimonial credibility of the complainant and the appellant.

[20] As a starting point, it is well-settled that a witness’s prior consistent statements are presumptively inadmissible: see e.g., R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, leave to appeal refused, [2017] S.C.C.A. No. 139. There are two main reasons for this. First, using a witness’s prior out‑of‑court statements for the truth of their contents engages the hearsay rule, regardless of whether the statements are consistent or inconsistent with the witness’s in-court evidence. Second, when a prior statement is consistent with the witness’s testimony, the mere fact of the consistency cannot be used to infer that the witness’s in-court evidence is more likely to be true: Khan, at para. 25; R. v. S.C., 2023 ONCA 832, at para. 14.

[21] The presumption that prior consistent statements are inadmissible is subject to multiple exceptions: see Khan, at paras. 27-36. However, even when a prior consistent statement is properly admissible on one or more bases, care must be taken to ensure that the trier of fact does not misuse it to draw logically or legally unsound conclusions that depend on prohibited reasoning.

[22] In the case at bar, Ms. Stephens does not suggest that the text messages at issue, which were put into evidence by the defence, should have been excluded entirely. Rather, her concern is with the use that the trial judge made of some of these messages.

[23] Ms. Stephens’s concerns are well-taken. At several different points in her reasons, the trial judge made comments that suggest on their face that she was improperly using the complainant’s prior statements as corroborating the complainant’s own in-court testimony, and as contradicting the appellant’s trial evidence.

[24] First, in the section of her reasons for judgment where the trial judge explained why she accepted the complainant’s evidence, she stated:

It is noteworthy that the complainant’s evidence was also corroborated by other evidence, such as the text messages and the photographs of her injuries.

[25] The trial judge went on to refer specifically to a text message in which the appellant admitted to losing his temper, describing this as confirming the complainant’s testimony that the appellant “had a bad temper”. Since the appellant’s own text messages were admissible for the truth of their contents under the admissions exception to the hearsay rule, there was nothing legally objectionable about the trial judge’s treating this particular text message as corroborating the complainant’s testimony.

[26] However, the trial judge then stated:

There are also contemporaneous text messages that confirm [the appellant] broke things, such as a counter and a glass, and threw a bottle at the complainant’s head when she would not stop talking when he told her to do so.

[27] Ms. Stephens and Crown counsel, Mr. Au, agree that the trial judge was referring to text messages the complainant sent to the appellant on February 27, 2013, in which she stated (in French):

Je mentais vraiment pas que te brise le comptoir. Mon verre pour ça! J'essayais s'arranger un problème.

As the trial judge noted in her reasons, this can be translated into English as:

I did not deserve that you broke the counter. My glass for that.

[28] Several texts later, the complainant stated (also in French):

Tu m'a demander de ma la fermer. Je t'ai dit ok. Je vais me la fermer. Et tu me criss le bouteille par la tête et tu part.

The trial judge translated this to English as:

You asked me to shut up. I told you ok. I will shut up. And you throw me a bottle to the head and then you leave.

[29] The complainant then sent 18 more text messages before the appellant responded. His responses did not squarely address the complainant’s texts about the broken counter and the thrown bottle, and Mr. Au does not suggest that the appellant’s responses can fairly be read as an adoptive admission by him that either of these things had happened.

[30] Although the complainant testified at trial that the appellant often broke things around the house and threw things at her, she does not seem to have specifically described him as breaking a counter or throwing a bottle at her head. [2] The trial judge nevertheless characterized the complainant’s text messages as “confirm[ing]” that the appellant “broke things, such as a counter”, and that he “threw a bottle at the complainant’s head when she would not stop talking when he told her to do so.”

[31] The trial judge’s use of these prior statements by the complainant for this purpose was legally erroneous in two different respects. First, the complainant’s own prior statements could not be used to self-corroborate her in-court allegations. As this court recently explained in S.C., at para. 14:

It is impermissible for triers of fact to reason that a prior consistent statement corroborates in-court testimony or that consistency enhances credibility: Khan, at para. 41. A prior consistent statement cannot corroborate in-court testimony since it is not independent proof, coming as it does from the same source as the testimony. Moreover, repetition does not “enhance the value or truth of the testimony”: R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19, at para. 31. Lies or innocent errors can be repeated as readily as the truth can be repeated.

[32] Second, the trial judge implicitly used these text messages for the truth of their contents, in violation of the hearsay rule. In her trial testimony, the complainant appears to have testified in general terms that the appellant often broke things around the house and threw things at her, but had not alleged specifically that he broke a counter or threw a bottle. The trial judge appears to have assumed that the complainant’s allegations in her text messages that the appellant had done these things were true and accurate, such that they confirmed the more general allegations the complainant had made at trial.

[33] The trial judge then returned to these same text messages in the section of her reasons where she explained why she was entirely rejecting the appellant’s testimony, stating:

[The appellant] testified that he did not throw a bottle at the complainant’s head and did not break things. However, there are contemporaneous text messages in which the complainant wrote to [the appellant] that he broke a counter and threw a bottle at her head.

In our view, this passage also reflects an improper use by the trial judge of the complainant’s out-of-court statements for the truth of their contents.

[34] For the Crown, Mr. Au argues that the complainant’s February 27, 2013 text messages were properly usable to rebut the appellant’s contention that the complainant only started accusing him of violent acts years later, after they had separated. He also correctly points out that the trial judge’s reliance on other text messages at other points in her reasons was not problematic, either because these messages included admissions by the appellant that were admissible for their truth, or because the complainant’s prior statements in these text messages had other permissible uses.

[35] Mr. Au places particular reliance on Bauman C.J.B.C.’s dissenting reasons in R. v. Langan, 2019 BCCA 467, 452 D.L.R. (4th) 178, rev’d 2020 SCC 33, [2020] 3 S.C.R. 499, which were later adopted by the Supreme Court of Canada. In that case, Bauman C.J.B.C. cautioned that courts “should not speculate that the properly admitted evidence was improperly used, without clear indications to the contrary”: Langan, at para. 103.

[36] We agree that the February 27, 2013 text messages were properly admissible for limited purposes. In particular, the fact that the complainant had made these allegations on this date, within the first year of their relationship, potentially had some value as evidence rebutting the appellant’s theory that she had only fabricated her allegations against him after their breakup in 2015. We also agree with Mr. Au that the trial judge used some of the other text messages for proper purposes.

[37] However, neither of these considerations serves as an adequate response to Ms. Stephens’s argument that the trial judge used the February 27, 2013 text messages improperly. We reach this conclusion for three main reasons.

[38] First, in her closing submissions, Crown counsel at trial (not Mr. Au) expressly invited the trial judge to treat the complainant’s February 27, 2013 texts about the broken counter and glass as “consistent with her testimony that he broke things”. As we have explained, these texts could not properly be “used for the prohibited inference that consistency enhances credibility, or the incorrect conclusion that the simple making of a prior consistent statement corroborates in-court testimony”: Khan, at para. 41. However, the trial judge appears to have taken up the Crown’s invitation to use these statements for precisely this purpose.

[39] Second, since the appellant was self-represented, the trial judge did not receive any assistance from defence counsel about the proper and improper uses of the text messages. Although most of these messages, including the exhibit containing the February 27, 2013 exchange, had been adduced by the defence, it remained the trial judge’s obligation to only use this evidence for legally permissible purposes.

[40] Third, and most critically, at no point in her reasons did the trial judge instruct herself about the permissible and impermissible uses of the complainant’s prior consistent statements in the text messages.

[41] Although trial judges are presumed to know the law, this presumption does not entitle appellate courts to ignore what trial judges actually say in their reasons. A corollary of the judicial duty to give reasons is that when reasons are given, they should generally be taken seriously and at face value, as an accurate reflection of their author’s thought processes. While appellate courts should not be too quick to speculate that a trial judge has misused evidence that has both permissible and impermissible uses, they equally cannot ignore clear statements by trial judges indicating that they may have used evidence improperly.

[42] In short, this is not a situation like Langan, where a majority of the Supreme Court of Canada agreed with Bauman C.J.B.C.’s conclusion from the trial record as a whole that the trial judge had only used the evidence at issue “for the purposes for which it was admissible”: at para. 104. Rather, the trial judge’s reasons in this case expressly state that she was treating the complainant’s February 27, 2013 text messages both as “corroborat[ing]” and “confirm[ing]” the complainant’s own in-court testimony, and as contradicting the appellant’s denials. We cannot conclude that the trial judge did not mean what she said, or infer that she must have only used these text messages in some different, and legally permissible, manner.

[43] We also appreciate that the trial judge listed many other reasons for her finding the complainant credible and the appellant incredible. However, Mr. Au did not invite us to apply the curative proviso, and we would not in any event have been satisfied that the proviso could properly be applied in the circumstances of this case. This court has noted that “caution should be exercised” before invoking the proviso in cases turning on credibility: see e.g., R. v. Perkins, 2016 ONCA 588, 339 C.C.C. (3d) 438, at para. 32; R. v. Alisaleh, 2020 ONCA 597, at para 18. In this case, where the core disputed issue was credibility, the trial judge’s use of the text messages was an essential part of her reasoning process.

[44] Accordingly, the conviction appeal is allowed and a new trial is ordered on all counts, including those that were conditionally stayed by the trial judge. This makes it unnecessary to address the appellant’s sentence appeal.

Released: July 17, 2024 “M.L.B.” “M.L. Benotto J.A.” “S. Coroza J.A.” “J. Dawe J.A.”

Footnotes

[1] The Crown stayed one charge of assault causing bodily harm, Count 3, which captured the same alleged conduct as the aggravated assault charge in Count 15.

[2] Since this appeal proceeded as an inmate appeal, we do not have the full trial record. However, the trial judge’s reasons, which review the testimony of the two witnesses at length, do not describe the complainant as having made these specific allegations.