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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

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

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(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;

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

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the witnesses and the victim who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

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

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(c) a warning to the individual is not appropriate.

(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.

COURT OF APPEAL FOR ONTARIO

DATE: 20240919 DOCKET: C70211

Thorburn, Coroza and Copeland JJ.A.

BETWEEN

His Majesty the King Respondent

and

R.A. Appellant

Counsel: Carter Martell, for the appellant Jacob Millns, for the respondent

Heard: December 11, 2023

On appeal from the convictions entered on October 22, 2021 and the sentence imposed on February 18, 2022 by Justice Robert F. Goldstein of the Superior Court of Justice, with reasons reported at 2021 ONSC 7044 and 2022 ONSC 1161.

Coroza J.A.:

I. OVERVIEW

[1] The appellant appeals his convictions and the duration of his SOIRA order for two counts of sexual interference.

[2] The complainant is the appellant’s stepdaughter. In 2019, the complainant gave a statement to the police wherein she disclosed an incident from October 2018 when she was eleven years old. She told the police that on the day in question, her mother, Y.A., left their apartment in the morning for work or study. The appellant and the complainant had chores to do before her mother came back but they decided to watch a movie first in the appellant’s bedroom. They lay together in the appellant’s bed. According to the complainant, the appellant started kissing her on the lips using his tongue. He then started touching her on her vagina for approximately ten seconds. The complainant ended the incident by running back to her room. She then texted [1] Y.A., disclosing that the appellant had touched her. Y.A. came home and went to the complainant’s room. Y.A. then confronted the appellant and screamed at him. The complainant told Y.A. she was sorry, because she did not want to ruin the relationship between the appellant and her mother. The appellant left the apartment that day.

[3] At the appellant’s preliminary inquiry, the complainant also testified that the appellant had previously kissed her on the lips, privately, on two occasions. At trial, the two kissing incidents formed the basis for the first count of sexual interference. The touching incident formed the basis for the second count of sexual interference.

[4] Three witnesses testified at trial: the complainant for the Crown, and Y.A. and the appellant for the defence. The complainant adopted her statement to the police and it was admitted into evidence under s. 715.1(1) of the Criminal Code.

[5] The appellant denied the allegations in his testimony. Regarding the allegation of sexual touching, he testified that while Y.A. was out at work, he and the complainant were both on his bed and he was helping her with homework. He stopped because there was a dispute between them as to how he was teaching the math. They then watched television together and he fell asleep. When he woke up, the complainant was on her phone and the appellant resumed watching television. After a while, the complainant fell asleep. The appellant testified that at some point, about an hour and half before the complainant’s mother was to return home from work, he woke up the complainant and reminded her to clean up her pet rabbit’s cage while he prepared some food. It was only when the mother returned home from work that he was confronted with the allegation of sexual touching.

[6] Y.A. testified that the complainant had contacted her about the alleged sexual touching by a text message, which Y.A. saw when she had a chance to look at her cell phone near the end of her work shift.

[7] In his reasons for judgment, the trial judge recognized that the text message was a prior consistent statement and inadmissible. However, he admitted the evidence about the text message for the truth of its contents as a spontaneous utterance. The trial judge then placed “great weight” on the text message and used it to reject the appellant’s evidence. The trial judge accepted the testimony of the complainant because of important circumstantial evidence around the incident, including the text message. Consequently, the trial judge convicted the appellant for both counts of sexual interference and sentenced the appellant to two years’ imprisonment and three years of probation.

[8] The appellant makes four submissions:

1. The trial judge erred by admitting the evidence about the text message as a “spontaneous utterance,” and then using it to reject the appellant’s testimony and to corroborate the complainant’s testimony;
2. The trial judge erred in finding the complainant’s demeanour after the alleged sexual touching incident to be corroborative of her account;
3. The trial judge erred in admitting cross-count similar fact evidence; and
4. The trial judge erred in failing to give any reasons for convicting the appellant on the first count (the kissing incidents).

[9] The appellant also argues that in light of R. v. Ndhlovu, 2022 SCC 38, 474 D.L.R. (4th) 389, the trial judge erred in imposing a lifetime SOIRA order.

[10] For the reasons that follow, I accept the appellant’s first submission and I would allow the appeal.

II. BACKGROUND FACTS

(1) The Incidents

[11] The appellant married Y.A. in 2015. The two immigrated to Canada with the complainant, Y.A.’s daughter, in 2017. Y.A., the appellant, and the complainant lived in an apartment together.

[12] At trial, the complainant alleged that on a Sunday morning in October or November 2018, when she was 11 years old, the appellant hugged her, kissed her on the lips, and touched her vagina under her clothes. Her mother, Y.A., was out of the house at the time working or studying. The appellant and the complainant were supposed to clean the house. Instead, they watched television in the bedroom used by the appellant and Y.A. The touching happened while they were lying on the bed together.

[13] During the complainant’s testimony at the preliminary inquiry, she testified that she was pretending to be asleep when the touching happened because she was worried the appellant might “do something.” She did not mention pretending to be asleep during her police statement or examination-in-chief.

[14] The complainant gave evidence that after the touching occurred, she left the appellant’s bedroom and went to her own room. There, she texted Y.A. that the appellant had touched her. Y.A. came home. She first went to the complainant’s room and afterwards went to the appellant and screamed at him. The complainant said she was sorry because she did not want to ruin the relationship between the appellant and Y.A. The complainant was crying because she felt close to the appellant. The appellant left the apartment.

[15] Some months later, the appellant moved back into the apartment. The complainant gave evidence that she had told him she forgave him and loved him. She had apologized to him and said that nothing had happened.

[16] The appellant testified in his own defence. He denied the allegations. He described having a positive relationship with the complainant, who he described as being like “the daughter he never had”. However, they would sometimes argue about chores and homework.

[17] The appellant testified that on the day of the alleged touching incident, the complainant came into his bedroom while Y.A. was getting ready for work. The complainant asked for help with math homework. The appellant agreed to help but asked the complainant to control her temper as she sometimes became upset. They studied together for about half an hour, at which point the complainant became upset with his instructions. They switched to watching television. The appellant fell asleep. He woke up to see the complainant on her phone and he resumed watching television. After a while, the complainant fell asleep. Approximately an hour and a half before Y.A. was due to return home from work the appellant woke the complainant up and reminded her to clean her pet rabbit’s cage. He went to the kitchen to make food for the complainant. Y.A. arrived home and went straight to the complainant’s bedroom. Y.A. then confronted the appellant about the touching incident. He denied it. Y.A. told the appellant he had to leave the house, and he did.

[18] The appellant testified to a dinner with the complainant and Y.A. some months later. They discussed the touching incident. The complainant said she did not know if she imagined it or if it was a dream, but she wanted him to forgive her and to be a family again.

[19] The defence called Y.A. as a witness. She corroborated that on the day of the touching incident, the complainant asked the appellant for help with math homework. Y.A. then left for work. Later, shortly before leaving work to go back home, Y.A. checked her phone and saw a text message from the complainant, stating that the appellant had touched her “parts”. Y.A. messaged the complainant back, telling her to stay in her room. Y.A. came home and went directly to the complainant’s room. She told her to stay there. She then confronted the appellant who denied the accusation. The complainant came out and said that the appellant did not need to leave, since it was not his fault. The appellant left the apartment that day.

[20] In June 2019, the complainant disclosed the touching incident to her teacher. This disclosure led to a police investigation and the complainant gave a video-recorded to the police about the touching incident. After her police statement, the complainant disclosed for the first time that the appellant had twice kissed her on the lips prior to the touching incident. Both incidents occurred while the appellant and complainant were in a car together: the first occurred while they were in front of a grocery store, and the second in front of a pet store. The complainant could not remember exactly when these kissing incidents took place but could narrow the timeframe to between April 2017 and October 2018. Under cross-examination, the appellant agreed that he had often run errands alone with the complainant but did not know which days the complainant was referring to.

[21] The police ultimately charged the appellant with two counts of sexual interference. The first count related to the alleged kissing incidents. The second count related to the touching incident.

(2) The Trial Judge’s Reasons

[22] The trial judge began by addressing the Crown’s cross-count similar fact application. He granted the application, citing R. v. C.W., 2019 ONCA 976, and holding that the evidence of the prior kissing incidents was relevant context to the complainant’s evidence that she feigned sleep when the appellant touched her because she was afraid he might do something.

[23] The trial judge then moved to assessing the appellant’s evidence. Drawing a comparison to R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252 (Ont.C.A.), at para. 53, leave to appeal refused [2007] S.C.C.A. No. 69, he held that “there are no obvious flaws or contradictions in [the appellant’s] evidence”, but he still could not believe the appellant’s evidence or be left with a reasonable doubt because of it given the totality of all the other evidence.

[24] The complainant’s text message to Y.A. was central to the trial judge’s analysis and conclusions. He noted that the text message was a prior consistent statement and would ordinarily not be admissible for the truth of its contents. He also noted that the text message would, however, be admissible as narrative, and cited R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at paras. 37-39. However, he decided to admit the evidence of the text message for the truth of its contents as a spontaneous utterance.

[25] The trial judge considered various authorities on the admissibility of spontaneous utterances for the truth of their contents as an exception to the hearsay rule. He concluded that the evidence of the text message met the requirement for a spontaneous utterance since it was sent immediately after the sexual touching happened. In his view, the touching by her stepfather would have dominated the 11-year-old complainant’s mind. The message was therefore admissible for its truth.

[26] The trial judge then stated that he gave the message “great weight.” He could see no reason why the complainant would have fabricated an allegation against the appellant and then sent a text message about it. He concluded that the message was true and he rejected the appellant’s evidence.

[27] The trial judge was not left with a reasonable doubt by Y.A.’s evidence, which he found had credibility problems, and “kept changing.”

[28] Having rejected the defence evidence, the trial judge went on to find that he was convinced beyond a reasonable doubt of the appellant’s guilt. He accepted the complainant’s evidence because of the “important” circumstantial evidence around the incident, highlighting again the text message and stating that it was highly probative.

[29] The trial judge then considered and rejected various arguments by the defence about contradictions in the complainant’s evidence and her supposed motive to fabricate. This analysis is not impugned on appeal.

III. ANALYSIS

(1) Positions of the Parties

[30] As noted above, the appellant’s first submission is that the trial judge erred in admitting the evidence about the complainant’s text message to Y.A. as a spontaneous utterance. The appellant argues that the trial judge used circular reasoning to find the text message admissible under the hearsay exception. The appellant contends that to find that the complainant's mind was startled and dominated by the event described in the text message, the trial judge had to have assumed the truth of the text's contents: that the appellant had committed a startling act of sexual touching. This error was compounded by the importance the trial judge placed on this evidence in his reasons. The appellant argues that nothing about the circumstances in which the text message was sent lent any reliability to its contents and thus the text message had no probative value; yet, the trial judge used it to reject the appellant’s evidence and support his acceptance of the complainant’s testimony.

[31] The respondent submits that the trial judge’s decision to admit the text message was informed by the correct legal principles and that his conclusion was reasonable. In any event, even if the text message was not admissible as a spontaneous utterance, it was admissible as “narrative as circumstantial evidence” because the circumstances surrounding the sending of the text message assisted in assessing the reliability and credibility of the complainant’s in-court testimony: R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, at para. 31 (“Khan 2017”), leave to appeal refused [2017] S.C.C.A. 139.

(2) Standard of Review

[32] The standard of review is undisputed. The admissibility of a statement as a spontaneous utterance is a question of law; however, when evaluating hearsay evidence, the factual findings by the trial judge regarding the circumstances surrounding a spontaneous utterance are subject to review on a standard of palpable and overriding error. If the trial judge applied the correct principles of law his decision to admit the text as a spontaneous utterance is entitled to deference on appeal: R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 31; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 36.

(3) Spontaneous Utterances

[33] The trial judge correctly observed that spontaneous utterances are admissible for the truth of their contents as an exception to the rule against hearsay. The reliability of a statement found to meet the test for a spontaneous utterance flows from its closeness in time to a startling, shocking, or emotionally intense event that so “dominates” the declarant’s mind such that “the statement can be regarded as an instinctive reaction to that event, thus giving the declarant no real opportunity for reasoned reflection or concoction”: R. v. Camara, 2021 ONCA 79, 400 C.C.C. (3d) 490, at para. 85; R. v. Mullin, 2019 ONCA 890, 383 C.C.C. (3d) 16, at para. 41. R. v. Nguyen, 2015 ONCA 278, 125 O.R. (3d) 321 at para. 145, leave to appeal refused, [2015] S.C.C.A. No. 365; R. v. Khan (1988), 42 C.C.C. (3d) 197 (Ont.C.A.) (“Khan (1988)”), affirmed for other reasons, , [1990] 2 S.C.R. 531. Put another way, the “spontaneity” of the statement and its (reasonable) “contemporaneity” with the triggering event “are guarantors of reliability”: Camara, at para. 85, citing R. v. Andrews, [1987] A.C. 281 (H.L.), at pp. 300-01. Therefore a trial judge must satisfy themselves, before admitting such a statement as an exception to hearsay, that the statement was so clearly made in circumstances of spontaneity or involvement in the triggering event that the possibility of concoction can be disregarded: R. v. Clark (1983), 42 O.R. (2d) 609 (Ont.C.A.) at p. 621, leave to appeal refused, [1983] S.C.C.A. No. 253, citing Ratten v. R., [1971] 3 All E.R. 801 at p. 807. As this court in Khan (1988) noted at p. 207, “where the spontaneity of the statement is clear and the danger of fabrication is remote, the evidence should be received” (emphasis added).

[34] The admissibility of the declaration as a spontaneous utterance is assessed “not simply by mechanical reference to time but rather in the context of all of the circumstances surrounding the utterance at the time, including those which tell against the possibility of concoction or distortion” (emphasis added): R. v. Dakin, (1995), 80 O.A.C. 253 at para. 20; Nguyen, at para. 147.

(4) The trial judge erred in admitting the evidence of the text message as a spontaneous utterance

[35] To begin, I recognize that the admissibility of the text message was a difficult evidentiary issue for the trial judge. It was both hearsay and a prior consistent statement because the complainant testified. The trial judge had to proceed cautiously with this evidence, and the parties should not have waited until their closing submissions to raise the issues of admissibility and use. Submissions should have been made when the text message was first introduced as this would have focused the attention of the parties and the judge on the test for admissibility and the permissible and impermissible uses of the message: R. v. Schneider, 2022 SCC 34, 418 C.C.C. (3d) 137, at para. 37; R. v. Evans, [1993] 3 S.C.R. 653, at p. 664; R. v. Sylvain, 2014 ABCA 153, 310 C.C.C. (3d) 1, at paras. 27-29. This court has reminded counsel and trial judges that because hearsay and prior consistent statements are presumptively inadmissible and the exceptions to this evidence are sometimes difficult to apply, it is important to address the basis for admissibility of such statements when they are first introduced: R. v. A.V., 2024 ONCA 339, 437 C.C.C.(3d) 316, at paras. 34-36; R. v. D.K., 2020 ONCA 79, 384 C.C.C. (3d) 405, at para. 45, leave to appeal refused, [2020] S.C.C.A. No. 87. It is regrettable that this was not done in this case.

[36] As I will explain, I accept the appellant’s claim that the trial judge erred in admitting the evidence of the text message as a spontaneous utterance. For ease of reference, the impugned passages of the trial judge’s reasons relevant to his analysis of the admissibility and use of the text message evidence are set out below:

[43] I start with the text message. [The complainant] provided direct evidence of the contents of the text message. I find it was a text message and not a phone call, as I explain later in these reasons. In my view, nothing turns on whether it was a text message or a phone call. The content is the key point, not the method of transmission. Ordinarily, the text message would not be admissible for the truth of its contents as it is a prior consistent statement. It would, however, be admissible as narrative: R. v. Dinardo. In this case, however, I admit it for the truth of its contents as a spontaneous utterance.

[49] The text messages meet the requirement for a spontaneous utterance. [The complainant] testified that she left the bedroom and immediately called her mother. She told her mother that R.A. had touched her. Y.A. testified that [the complainant] had sent her a text. She saw the text when she had a moment to check her phone. [the complainant] said in the text that R.A. had touched her. Y.A. then called [the complainant]. It makes sense that [the complainant] sent a text and is confusing the call that Y.A. made to her with a call she thinks she made to Y.A. It makes sense that Y.A. would not have been permitted to have her phone with her at work.

[50] Whether [the complainant] sent a text or made a call is not material. [The complainant’s] mistaken belief that she made a phone call is relevant to her credibility and reliability but, in my view, it does not affect threshold admissibility. The key point that everyone agrees on is that [the complainant] communicated to Y.A. that R.A. had touched her; and that the communication occurred immediately after it happened. There is no question that R.A. touching [the complainant’s] vagina would have been a startling event for [the complainant]. She was 11 years old at the time and R.A. was her stepfather. I do not doubt for a moment that it would have dominated [the complainant’s] mind.

[51] I give the text message great weight. I can see no reason to conclude that, out of the blue, [the complainant] fabricated an unfounded allegation of sexual touching against R.A. and sent a text message about it. I find that the statement that [sic] is true. When stacked up against the timing and content of the text message, I reject R.A.’s evidence.

(c) Am I satisfied beyond a reasonable doubt of the guilt of R.A.?

[60] The basic defence position is that [the complainant] fabricated the touching incident and the two kissing incidents. Mr. McCuaig argues that [the complainant’s] description of the sexual touching was inconsistent and what she testified to was physically impossible. He further argues that [the complainant] gave contradictory details at different times about the two incidents. Mr. McCuaig further argues that [the complainant] was motivated by resentment at R.A. after having spent time with her father.

[61] Respectfully, I cannot agree. I accept [the complainant’s] evidence in her s. 715.1 statement that R.A. sexually touched her and on two occasions kissed her. I am satisfied beyond a reasonable doubt that the incidents occurred.

[62] I accept [the complainant’s] evidence because of the important circumstantial evidence around the incident. As I have already noted the spontaneous utterance to her mother that R.A. had sexually touched her is highly probative. The demeanour evidence is also probative. As well, I find that the two kissing incidents are probative because they explain [the complainant’s] tension about the prospect that R.A. would “do something” to her. I am not left with a reasonable doubt by the problems in the Crown’s case identified by the defence. [Emphasis added.] [Citations omitted.]

[37] The trial judge only gave brief reasons for admitting evidence about the text message. The trial judge expressly stated: “the key point [for admissibility] that everyone agrees on is that [the complainant] communicated to Y.A. that R.A. had touched her; and that the communication occurred immediately after it happened”. Respectfully, the trial judge’s analysis reveals palpable and overriding error and errors of law. Consequently, the admissibility ruling must be set aside. I say this for the following reasons.

(i) The trial judge improperly found that the parties agreed the text message was sent immediately after the sexual touching allegedly occurred

[38] First, I find no support in the record for the trial judge’s finding that there was agreement that the text message was sent by the complainant to Y.A. immediately after the sexual touching allegedly occurred. In his closing submissions, defence counsel stated that the complainant’s allegations were “clearly reported just before [Y.A.] comes home and in the days following”. However, defence counsel’s position was that the sexual touching was fabricated from the beginning. In reply to the trial Crown’s submission that the complainant’s text message to her mother was a spontaneous utterance “immediately after the event in question”, defence counsel stated that he took no issue with the fact that the text message was sent “on the day that these events happened”, but that he did take issue with “characterizing them as reported immediately after, because my client’s position, my position is, it couldn’t be immediately after because nothing happened.”

(ii) The trial judge did not turn his mind to the risk of “bootstrapping”

[39] Second, the only evidence as to the spontaneity of this text message came from the complainant alone, who was alleged by the appellant to have entirely fabricated it. Accordingly, this was not a straightforward application of the hearsay exception. In many other spontaneous utterance cases the occurrence of the alleged event that triggered the utterance is also supported by some other, independent evidence (e.g., physical injuries, a death, other eyewitnesses, etc.). Moreover, and relatedly, the statement in this case is a text message that is devoid of any context and was not introduced at trial as an exhibit. The trial judge thus could not examine the exact contents of that message, or the data that would provide information as to when the message was sent to Y.A.

[40] In circumstances where the only evidence that a statement was made in a state of emotion generated by a triggering event comes from the very person whose credibility is being challenged, a trial judge has to turn their mind as to whether there is a risk of “bootstrapping”: R. v. N.W., 2018 ONSC 774, at para. 60; and R. v. S.R., 2023 ONSC 350, at para. 35. In R. v. Khelawon, 2006 SCC 57, at para. 100, the Supreme Court quoted Professor Paciocco’s (as he then was) definition of “bootstrapping” in which he used the example of relying upon the contents of a hearsay statement to prove the existence of pressure from a shocking event, when it is that pressure which would have negated the risk of concoction of that hearsay statement: [2]

In fact, the "bootstrapping" label is usually reserved to circular arguments in which a questionable piece of evidence "picks itself up by its own bootstraps" to fit within an exception. For example, a party claims it can rely on a hearsay statement because the statement was made under such pressure or involvement that the prospect of concoction can fairly be disregarded, but then relies on the contents of the hearsay statement to prove the existence of that pressure or involvement. [Citations omitted.]

[41] I do not suggest that independent evidence is always required before a trial judge can admit a spontaneous utterance. This court in Khan (1988) commented that “whether a startling occurrence which gives rise to a spontaneous statement can be proven by the statement alone may be open to question” (emphasis added). But in Khan (1988) itself, there was forensic evidence of a semen stain on the young child complainant’s sleeve, which constituted independent evidence that supported the fact that a triggering event did occur. This Court thus found it “unnecessary to determine whether in the absence of such evidence the statement [about being sexually assaulted] would be admissible”: Khan (1988), at p. 212.

[42] In this case, it was incumbent on the trial judge to explain why, given that there was no independent evidence as to the startling circumstances giving rise to the making of the statement, he safely discounted the possibility of concoction or distortion. I again highlight that the trial judge prefaced his finding that the complainant’s mind was “dominated” by the incident with the statement “[t]he key point that everyone agrees on is that [the complainant] communicated to Y.A. that R.A. had touched her…”. He could see no reason “to conclude that, out of the blue” the complainant fabricated an allegation of sexual touching and sent a text message about it. The trial judge appears to have reasoned that the basis for thinking there was some startling event that dominated the complainant’s mind was the content of the text message itself.

[43] In these circumstances, when the only source of evidence of a startling event leading to a spontaneous utterance is the evidence of the declarant, the assessment of whether the circumstances of the utterance do not give rise to a risk of concoction and fabrication is extremely important. The absence of this assessment in the trial judge’s reasons resulted in a legal error.

(iii) The conflict in timing should have been addressed in determining admissibility of the text message

[44] Third, while it is not necessary that a spontaneous utterance be made exactly contemporaneous to the triggering event, a trial judge should nonetheless assess any intervening events to determine whether they undermine the statement’s trustworthiness. Here, the record reveals conflicting evidence as to the timing of the text message that was never resolved by the trial judge in his ruling. Perhaps the trial judge did not grapple with the conflict, because, as noted above, he believed there was no dispute that a text message was sent right after the triggering event. However, given the existing conflict in the evidence, the trial judge was required to evaluate the timing of the text message and whether it was sent near enough in time to the triggering event to exclude any realistic opportunity for fabrication or concoction.

[45] The conflict in the evidence arises from the differing timelines given by the Y.A., the complainant, and the appellant. Y.A.’s testimony regarding the timing of the events on the day in question is as follows. On the alleged offence date, Y.A. was scheduled to work at her job in a nearby mall from 11:00 a.m. to 3:00 p.m. Y.A. left home between 10:30 a.m. and 10:40 a.m. Y.A. testified that because store employees were not permitted to carry around their cell phones while working, she did not look at her cell phone until it was close to the end of her work shift: i.e., “maybe 20 minutes to 3:00 [p.m.]”. That was when she saw the text message from the complainant alleging that the appellant was touching her. Y.A. testified that she was already about to leave work and the complainant’s text message had said she was inside her bedroom, so Y.A. sent a message to the complainant to stay inside her own bedroom until Y.A. arrived home. When Y.A. got home, she went directly to the complainant’s bedroom where she found the complainant sitting on the bed waiting for her.

[46] The complainant’s evidence regarding the timing of events, by contrast, indicates that the text message was sent to Y.A. much earlier in the day, as she testified that the touching occurred shortly after Y.A. left the home and she texted Y.A. immediately after. In the complainant’s video statement to the police, her first reference to contacting her mother was as follows:

Well um my mom was going to work or study and then we were going to clean the house but they we stay and watch a movie and then he started kissing me and touching me and then I just run away well like I was trying to be nice because I say if I told him that I was going to tell my mom he was going to do something to me … So I was trying to be nice so like he doesn’t do anything to me so I went to my room by myself and then I call my mom and then she comes back and then all of a sudden they start fighting and screaming…. [Emphasis added.]

[47] At trial, the complainant estimated that the appellant would have touched her around 11:00 a.m. or 12:00 p.m. The complainant gave the following specific evidence at trial about the timing of contacting her mother:

Q. How soon after the touching did you call your mother?

A. Right away. I locked – I went to my room, I locked myself and then I texted my mom and then I called her.

Q. Okay. And I think in the video you say that you told your mom that [the appellant] was touching you. Is that right?

A. Yes.

Q. Do you remember how soon after your mom came home?

A. Like 25 minutes, maybe 30. I don’t really remember. [Emphasis added.]

[48] Finally, the timeline offered by the appellant differed from that of the complainant, as the appellant testified that he and the complainant were in his and Y.A.’s bedroom together until around 1:30 p.m. The appellant’s testimony was that Y.A. left to go to her job when he and the complainant started working on the homework. The appellant helped the complainant with her homework “for about, I don’t know, 30 to 40 minutes”, and then stopped when the complainant started contradicting him about the way he was teaching. However, the complainant stayed with him in his bedroom, and they watched TV together. The appellant fell asleep for “I don’t remember 30 or 40 more minutes”. When he woke up, the complainant was on her phone, and the appellant resumed watching TV. The appellant testified that after a while the complainant fell asleep. When the time was “like an hour and a half” before Y.A. was due to return home from work, the appellant woke the complainant up, and reminded her to clean the pet rabbit’s cage, which her mother had previously asked her to do. The appellant thought he woke the complainant up, “around 1:30 [p.m.]”. The appellant testified that this was when the complainant left his bedroom and went to her own room. When Y.A. arrived home from work, she went straight to the complainant’s bedroom without saying “hi” to the appellant, and then confronted the appellant with the allegation of sexual touching.

[49] There was clearly a conflict arising from the complainant testifying the touching happened around 11 a.m. or 12 p.m. and Y.A. then coming home “25 maybe 30 minutes later”, having received the text message sent “right away” after the touching, versus Y.A.’s evidence that she saw the text message around 2:40 p.m. “close to the time [she] was leaving [work]”. Further, the appellant’s testimony that the complainant left his room only after he woke her up around 1:30 p.m., combined with Y.A.’s evidence that she only had a chance to check her cell phone at “maybe” 2:40 p.m., resulted in a window of a little under one hour and ten minutes in which the text message could have been sent (if the complainant did not send it “right away” as she testified).

[50] I acknowledge the significance of the conflict in the evidence might have been attenuated by the principles on assessing children’s evidence and their perceptions of time: R. v. W. (R.), [1992] 2 S.C.R. 122; R. v. J.P., 2023 ONCA 570, at para. 37. I also recognize that the inquiry into whether a statement is a spontaneous utterance does not turn on the number of minutes that elapsed between the triggering event and the statement. However, that does not mean that a conflict within timing can be ignored without explanation. It is only after an examination of the totality of circumstances surrounding the statement, including timing, that a trial judge can safely discount the possibility of concoction or distortion. Again, that analysis is absent from the trial judge’s reasons.

[51] In sum, the trial judge’s reasons disclose palpable and overriding error and errors in law. On this record, there was very little that could be said to support the spontaneity of the text message other than the complainant’s evidence that she had sent it after she had been touched. Consequently, the trial judge’s ruling on admissibility cannot stand. The text message was inadmissible because it was hearsay and a prior consistent statement.

[52] It follows that the trial judge’s subsequent findings regarding the parties’ credibility and reliability must also be set aside. The trial judge viewed the text message as an important piece of evidence. Specifically, he placed “great weight” on the text message and found it to be true. He then relied on the text message to reject the appellant’s evidence and to support his belief of the complainant’s evidence. The text message was a material piece of evidence and was an important feature of the trial judge’s reasons for convicting the appellant.

(5) Narrative as Circumstantial Evidence

[53] The respondent argues that even if the trial judge erred by admitting the evidence of the text message as a spontaneous utterance, the appeal should still be dismissed because the text message was admissible as “narrative as circumstantial evidence” which is a recognized exception to the rule against admissibility of that prior consistent statements. This submission was also made by the trial Crown. During her closing submissions, the trial Crown argued that the trial judge could admit the text message evidence as narrative as circumstantial evidence if he had any doubts about the text message being admissible as a spontaneous utterance.

[54] I am not persuaded by the respondent’s alternative argument that this ground can be dismissed because the text message was admissible as narrative as circumstantial evidence. Plainly, the trial judge did not admit the text message as an exception to the rule prohibiting prior consistent statements, nor did he simply admit the text message for the purpose of looking at the circumstances of the text message in assessing the complainant’s credibility. The trial judge explicitly said, “ordinarily, the text message would not be admissible for the truth of its contents as it is a prior consistent statement” and then went on to stress “in this case, however, I admit it for the truth of its contents as a spontaneous utterance”.

[55] From my review of his reasons, the trial judge was not using the text message simply for evaluating the context in which the initial complaint arose because it could assist him in assessing the truthfulness of the complainant's in-court testimony: Khan 2017, at paras. 31-34, 43. As noted above, the trial judge stated, “I give the text message great weight” and “I find that the statement that [sic] is true”. In later passages, he went on to state that when the appellant’s evidence was stacked up “against the timing and content of the text message”, he did not believe the appellant. The trial judge’s use of this statement was clearly tethered to his conclusion that it was a spontaneous utterance that emerged from the stress of a sexual assault and was thus admissible for the truth of its contents.

[56] For these reasons, I would allow the appeal and order a new trial on both counts. While the text message is related to the alleged incident of sexual touching, I am satisfied, after reviewing his reasons as a whole, that the trial judge’s admission and use of the text message as a spontaneous utterance affected his assessment of the complainant’s credibility on both counts.

(6) Other Grounds of Appeal

[57] In light of my conclusion on the appellant’s first ground of appeal, it is not necessary to decide the other grounds of appeal.

IV. DISPOSITION

[58] For these reasons, I would allow the appeal, quash the convictions and order a new trial.

Released: September 19, 2024 “J.A.T.” “S. Coroza J.A.” “I agree. Thorburn J.A.” “I agree. Copeland J.A.’

[1] At trial there as some dispute whether it was a text message or a phone call. The trial judge found as fact that it was a text message. The parties accept this on appeal.

[2] Quoting from Paciocco, David M., “The Hearsay Exceptions: A Game of ‘Rock, Paper, Scissors’”, in Special Lectures of the Law Society of Upper Canada 2003: The Law of Evidence. Toronto: Irwin Law, 2004, 17 at p. 36.