Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20241025 DOCKET: COA-23-CR-0704

Roberts, Copeland and Dawe JJ.A.

BETWEEN

His Majesty the King Respondent

and

B.B. Appellant

Counsel: Samantha Bondoux and Mark Halfyard, for the appellant Baaba Forson, for the respondent

Heard: October 23, 2024

On appeal from the conviction entered by Justice Rita-Jean Maxwell of the Superior Court of Justice, sitting with a jury, on February 17, 2023, and the sentence imposed on July 11, 2023.

Reasons for Decision

[1] The appellant was charged with 2 counts of sexual interference against his daughter, L.B. Following a trial by jury, he was acquitted of the charge of sexual interference when L.B. was between 5 and 7 years old (count 1) and convicted of the charge of sexual interference when L.B. was 13 years old (count 2). L.B. was 17 years old when she testified at trial. The appellant was sentenced to three years’ imprisonment.

[2] The appellant argues that the trial judge committed two reversible errors: 1) she erred in finding that the rule in Browne v. Dunn (1893), 6 R. 67 (H.L.) was breached and, in consequence, in giving a jury instruction that was prejudicial to the appellant; and 2) she erred in her jury instruction that L.B.’s prior consistent statements could be used to assess her credibility.

[3] At the conclusion of oral argument, we advised the parties that the appeal was allowed and a new trial ordered, with reasons to follow. These are our reasons.

Ground One: Browne v. Dunn ruling and jury instruction

[4] The appellant’s ex-wife, F.B., L.B.’s mother, testified that during a telephone conversation she had with the appellant, he had confessed to the incident of sexual touching when L.B. was 13 years old. F.B. testified that the appellant explained that he had found L.B. masturbating and used his own hands to show her how to do it. F.B. also testified about a second phone conversation in which the appellant denied making the admissions she said he made in the first conversation. F.B. testified further that she had recorded both conversations but had later deleted the recordings after the police told her they could not be used at trial.

[5] The trial judge found the rule in Browne v. Dunn was breached because the appellant’s trial counsel did not put various points to F.B. during her cross-examination in respect of which the appellant subsequently led evidence to contradict her, namely, that: (i) the appellant did not confess to touching L.B. during the first telephone conversation; (ii) she did not record either of the two conversations; (iii) F.B. did not tell the appellant that she was recording the conversations; and (iv) it had been F.B., and not the appellant, who brought up the topic of L.B.’s masturbation that the appellant allegedly said led to the sexual touching. The trial judge determined that F.B. should have been given an opportunity to respond to these points.

[6] The trial judge gave a final instruction to the jury in which she repeated the points that she found the appellant should have put to F.B. and instructed them that they could take into account the appellant’s failure to do so in assessing his credibility. She concluded her instruction as follows:

Ultimately, it is for you to decide whether the appellant admitted that he touched [L.B.] in a phone call or phone calls to [F.B.]. As I have told you, one factor you can consider as you assess [the appellant’s] credibility on this point and determine how much weight to give his evidence is the opportunity given to [F.B.] to challenge his account. Again, it is for you to decide.

[7] Following this instruction, the trial judge gave a related correcting instruction concerning the appellant’s counsel’s closing submissions as to whether it was necessary to put questions to F.B. on the areas the trial judge had just discussed, or what other remedies could have been used such as recalling a witness. In this instruction, the trial judge reminded the jury that counsel should have cross-examined F.B. on the four points she had identified.

[8] We agree that the trial judge erred in applying the rule in Browne v. Dunn when there was no unfairness or prejudice to F.B. or the trial process by the appellant not explicitly putting to F.B. the various points outlined by the trial judge. Ordinarily, the trial judge’s decision about whether the rule has been offended and unfairness has resulted is entitled to considerable deference on appeal: R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at para. 90, leave to appeal refused, [2016] S.C.C.A. No. 203. However, in the circumstances of this case, where F.B. had a full opportunity to provide her version of events and the appellant’s denial of those events was clear, the trial judge’s finding that the rule was breached and her jury instruction that was prejudicial to the appellant amount to a reversible error that displaces appellate deference.

[9] The rule in Browne v. Dunn is rooted in considerations of fairness. As a matter of fairness, proposed contradictory evidence should be put to a witness so that the witness has an opportunity to explain and respond. However, it is not an inflexible or absolute rule and “counsel must not feel obliged to slog through a witness’s evidence-in-chief, putting him on notice of every detail that the defence does not accept”: R. v. Verney, at p. 376. As this court further explained in Quansah, at para. 81:

Compliance with the rule in Browne v. Dunn does not require that every scrap of evidence on which a party desires to contradict the witness for the opposite party be put to that witness in cross-examination. The cross-examination should confront the witness with matters of substance on which the party seeks to impeach the witness' credibility and on which the witness has not had an opportunity of giving an explanation because there has been no suggestion whatever that the witness' story is not accepted. It is only the nature of the proposed contradictory evidence and its significant aspects that need to be put to the witness. [Citations omitted; italics in original, underline added]

[10] Moreover, as Quansah instructs, at para. 82:

In some cases, it may be apparent from the tenor of counsel’s cross-examination of a witness that the cross-examining party does not accept the witness’ version of events. Where the confrontation is general, known to the witness and the witness’ view on the contradictory matter is apparent, there is no need for confrontation and no unfairness to the witness in any failure to do so.

[11] This was not a case where anyone was taken by surprise by a document or other evidence, where the appellant’s position was unknown, or where the witness would have provided a different or further explanation or response had the impugned issues been specifically asked in cross-examination. Here, the appellant pled not guilty and his denial of the allegations forming the basis for the charges was evident. The tenor of his counsel’s cross-examination of F.B. clearly indicated that the appellant was challenging her version of events. Importantly, F.B. had a full opportunity to explain her version of events, including on all the points on which the appellant later led contradictory evidence. F.B. would not have changed her evidence if the appellant’s counsel had specifically put to her the appellant’s denial of the alleged confession and his version of events on the other related points. Nor would she have needed to amplify the already detailed evidence that she had given. There was no unfairness to F.B. or to the Crown, and the jury was not misled.

[12] There was, however, unfairness to the appellant because of the trial judge’s ruling and jury instruction. Given the difficulties with L.B.’s credibility and reliability as a witness, F.B.’s evidence, specifically her evidence about the appellant’s confession, was crucial to the Crown’s case. The jury instruction, including the trial judge’s correction of appellant counsel’s closing submissions, served to bring to the jury’s attention the supposed unfairness of the appellant’s counsel not cross-examining F.B. on the specific points and instructed the jury that they could use this to assess the appellant’s credibility. In the circumstances of this case, there was no need for a remedial jury instruction. It was prejudicial to the appellant. A new trial is required.

Second Ground: Jury Instruction on L.B.’s Prior Consistent Statements

[13] In light of our conclusion that a new trial is required based on the appellant’s first ground of appeal, it is not necessary to address the second ground alleging error in the jury instructions regarding the complainant’s prior consistent statements to a family friend, to her mother, and to the police.

[14] It is useful, however, to take this opportunity to reiterate the governing principles regarding prior consistent statements. The issues of the admissibility and use of prior consistent statements, including in the context of jury instructions, arise frequently before this court as a ground of appeal and have led to new trials being ordered.

[15] Prior consistent statements are presumptively inadmissible: see e.g., R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 36; R. v. D.K., 2020 ONCA 79, 60 C.R. (7th) 123, at para. 34.

[16] There are exceptions to the rule against prior consistent statements being received into evidence. It is not necessary to summarize the exceptions here. But this court has recognized that distinguishing between permissible and impermissible uses of prior consistent statements can be difficult: D.K., at para. 44.

[17] As presumptively inadmissible evidence, before a prior consistent statement may be received in evidence, the party seeking to tender it must obtain a ruling on admissibility. At the hearing on admissibility, the party requesting the admission of a prior consistent statement must identify “the precise basis upon which it should be received”: D.K., at para. 45. In particular, if a party is seeking to tender a prior consistent statement as relevant to a witness’ credibility, counsel must articulate how the prior consistent statement is relevant to the witness’ credibility: D.K., at para. 45.

[18] The process of seeking a ruling on admissibility of prior consistent statements – required for this presumptively inadmissible evidence – ensures that the parties and the trial judge turn their minds to the precise articulable basis on which admissibility is sought. This, in turn, will ensure that any jury instruction properly explains to the jury the precise manner in which the jury is permitted to use the evidence and any limitations on its use.

[19] In this case, the Crown adduced the complainant’s prior consistent statements without seeking an advance ruling on their admissibility, and without articulating the purposes for which it proposed to have them admitted into evidence. Neither counsel then made submissions to the trial judge about how the jury should be instructed about the proper and improper uses of these statements. However, in view of our conclusion that the appeal must be allowed for other reasons, it is unnecessary for us to decide on what bases the statements might have been admissible, or whether the trial judge’s instructions about their use were incorrect.