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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

(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

(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 File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20240202 DOCKET: C70659

Tulloch C.J.O., Nordheimer and Gomery JJ.A.

BETWEEN

His Majesty the King Respondent

and

Cory Whiston Appellant

Counsel: Richard Fedorowicz, for the appellant Charmaine Wong, for the respondent

Heard and released orally: January 30, 2024

On appeal from the conviction entered on October 29, 2021 by Justice Gordon D. Lemon of the Superior Court of Justice, with reasons reported at 2021 ONSC 7142.

Reasons for Decision

[1] Cory Whiston appeals from his conviction for sexual assault. He abandoned his appeal against sentence. It is alleged that the appellant had non-consensual sex with his girlfriend.

[2] Central to the issues at trial, and on this appeal, is the admission of certain text messages made between the complainant and the appellant, both before and after the alleged sexual assault. The appellant raises two issues. One is that the prosecution made four attempts to get the text messages admitted – three before the trial started and one at the trial – and only succeeded on the fourth attempt. The other is that the text messages ought not to have been admitted and relied upon because they were prior consistent statements.

[3] We accept the appellant’s point that there should not be multiple motions regarding the same evidence. This is a basic proposition that applies both to the prosecution and to the defence, but perhaps especially to the prosecution.

[4] That said, there is no absolute prohibition against multiple attempts to introduce the same evidence. It is up to the judge hearing subsequent motions, relating to the same evidence, to decide whether they should be entertained. In this case, the first three attempts were rejected by the court as a result of procedural deficiencies. In addition, the first two did not rule on the merits of the admissibility request. Further, the first two attempts were dismissed on the express understanding that the prosecution could renew the application on further and better material.

[5] The decision to allow or reject subsequent motions on the same evidence is a matter for the discretion of the trial judge. It is recognized that prosecutions are fluid and that a ruling made at one point may need to be revisited at another point if circumstances change: R. v. La, [1997] 2 S.C.R. 680 at para. 28. In this case, the trial judge viewed the decision in R. v. Langan, 2020 SCC 33 as changing the evidentiary landscape and warranting a revisiting of the admissibility of the evidence. We do not see any basis to interfere with the trial judge’s exercise of his discretion. The appearance of fairness is engaged as much by allowing the admission of probative evidence as it is by the multiplicity of attempts to do so.

[6] On the second issue, we do not accept that the trial judge erred in relying on the text messages as prior consistent statements. While the trial judge found the texts to be “strong corroboration” of the complainant’s evidence, we believe that his finding was made in the context of what the appellant had said in those texts both prior to and after the event, notably, that he knew that the complainant had not consented to the sexual activity in question. The statements of the appellant were admissible on their own as a party admission: R. v. Schneider, 2022 SCC 34, at paras. 52-57. The rules surrounding prior consistent statements do not have any application to those statements.

[7] Finally, the trial judge found that the evidence of the complainant was compelling. No error has been shown in his conclusion in that respect.

[8] The appeal is dismissed.

“M. Tulloch C.J.O.”

“I.V.B. Nordheimer J.A.”

“S. Gomery J.A.”