Court of Appeal for Ontario

CITATION: R. v. S.M., 2025 ONCA 18[^1]

DATE: 20250115

DOCKET: COA-23-CR-0545

Lauwers, George and Copeland JJ.A.

BETWEEN

His Majesty the King

Respondent

and

S.M.

Appellant

Nate Jackson, for the appellant

Ken Lockhart, for the respondent

Heard: November 8, 2024

On appeal from the finding of guilt entered by Justice Julia A. Morneau of the Ontario Court of Justice on January 30, 2023.

George J.A.:

Overview

[1] The appellant and the complainant were in an on-again, off-again dating relationship. The complainant alleged that between February 1, 2019, and June 30, 2019, the appellant sexually assaulted her on three occasions. The first incident occurred in February 2019; the second in either March or April 2019; and the third in either May or June 2019. During this period both the appellant and the complainant were under the age of 18.

[2] The complainant testified that each sexual assault unfolded in a similar way: the appellant and the complainant would be asleep in the same bed at the appellant’s family home, she would awake to find the appellant having sex with her, and once she was awake the appellant would stop. The complainant testified that the appellant said nothing to her after each encounter.

[3] While the complainant said she was sexually assaulted on three separate occasions, the appellant was charged on a one-count information that covered the time period noted above. The trial judge found the appellant guilty and sentenced him to four months’ open custody to be followed by two months of community supervision and 18 months’ probation.

[4] The appellant appeals against conviction. He argues that the trial judge 1) erred by allowing the Crown’s application to call rebuttal evidence, 2) failed to apply W.(D.) to the defence evidence, and 3) improperly admitted photographs into evidence when they had not been properly authenticated.

[5] For the reasons that follow I would dismiss the appeal.

Proceedings Below

[6] The Crown’s only witness was the complainant. She indicated that each assault occurred in the appellant’s parents’ home and that the appellant’s mother was in the house on each occasion. On cross-examination, she was challenged on, amongst other things, the time period when the appellant lived with his parents. When defence counsel put to her that the appellant did not live with his parents between November 2018 and March 24, 2019, the complainant disagreed.

[7] The appellant did not testify, but his mother did. Consistent with what defence counsel put to the complainant, she testified that the appellant had moved out of her home in December 2018 and did not move back in until March 24, 2019. She testified further that the appellant and his friends never stayed overnight at her home during the period the appellant was not living there, and that the complainant did not spend the night at her home at any point in February 2019. According to the appellant’s mother, the complainant did not resume staying over at her house until the summer of 2019.

[8] Once the appellant’s mother was done testifying, and after a short recess, the Crown told the court that the complainant, who had been listening to the mother’s testimony,[^2] was in possession of photographs, date and time-stamped, showing that she had visited the appellant at his parents’ home as early as January 2019, which is when their romantic relationship resumed.

[9] The Crown sought permission to re-call the complainant and to introduce these photographs in rebuttal, arguing that “the importance of the photographs, from the Crown’s point of view, is to establish a timeline of when the complainant says that the accused was back living in his parents’ home”. The Crown argued further that, even though defence counsel had examined the complainant about when the appellant had returned to live with his parents, there was “no way to reasonably anticipate that there were photographs that would potentially confirm the … witness’s belief about the dates”. The appellant opposed the Crown’s motion, taking the position that the photographs had no probative value and that the Crown should not be allowed to split its case. His counsel argued that the issue was squarely put to the complainant in cross-examination in a manner that made its importance abundantly clear.

[10] The trial judge granted the Crown’s request and received the photographs, which included six “screenshots” taken from the Snapchat mobile application; three of these screenshots purported to show the complainant, her sister, and the appellant at the appellant’s family home on January 9, 2019, between 6:10 p.m. and 10:40 p.m.

[11] The trial judge found the complainant to be credible and reliable. She accepted the complainant’s testimony that the sexual assaults occurred and that they occurred where and when she said they had. While the trial judge found the appellant’s mother to be credible, she concluded that she was mistaken about when the appellant and complainant rekindled their relationship, and about when the complainant had stayed at her home.

Discussion

Rebuttal Evidence

[12] The appellant submits that the trial judge erred by allowing the Crown to re-call the complainant to provide rebuttal evidence. Rebuttal evidence can only be called where the defence raises a “new matter or defence which the Crown has had no opportunity to deal with and which the Crown could not reasonably have anticipated”: R. v. Sanderson, 2017 ONCA 470, 349 C.C.C. (3d) 129, at para. 34, citing R. v. Krause, 1986 CanLII 39 (SCC), [1986] 2 S.C.R. 466, at p. 474. In the appellant's view, the trial judge focused on the wrong issue when applying this rule: she asked whether the Crown could reasonably have anticipated the existence of photographs that might support the complainant’s testimony, when the relevant question was whether the Crown could reasonably have anticipated the appellant’s defence, i.e., that he could not have committed the offence at his parents’ home in January or February because he did not live there, and never stayed overnight.

[13] The appellant argues that during the Crown's case it became clear that the location of the alleged sexual assaults was a live and material issue, which was tied specifically to where the appellant resided at the relevant time. He notes further that the Crown had an opportunity, during re-examination, to clarify how the complainant knew when the appellant had returned to his parents' home, but chose not to. According to the appellant, the Crown’s decision to not pursue this issue in re-examination should have precluded it from calling rebuttal evidence.

[14] I am not persuaded that, in the circumstances of this case, the trial judge committed a reversible error. In my view, the trial judge properly exercised her discretion to admit the rebuttal evidence.

[15] The general rule is that the Crown must introduce all the evidence it intends to rely on before closing its case. This rule against case-splitting ensures that the defence has a full opportunity to respond and is not taken by surprise by new evidence after the Crown has closed its case and the defence is complete: Krause, at pp. 473-74; Sanderson, at para. 32.

[16] However, the Crown may call rebuttal evidence where: 1) the defence raised a new matter which the Crown has had no opportunity to deal with and could not reasonably have anticipated; or 2) some matter that emerged during the Crown’s case took on added significance as a result of evidence adduced by the defence: R. v. D.W., 2023 ONCA 767, at para. 21; R. v. R.D., 2014 ONCA 302, 120 O.R. (3d) 260, at para. 17; R. v. K.T., 2013 ONCA 257, 295 C.C.C. (3d) 283, at para. 43.

[17] Where rebuttal evidence is used, as it was here, to refute a defence, it does not give rise to concerns about case-splitting: R.D., at paras. 18-19. This is so because an accused could not be surprised by rebuttal evidence on an issue they themselves raised. Further, the fact that an issue was “foreshadowed” – and the question of where the appellant lived in the winter of 2019 was indeed raised by defence counsel before the Crown closed its case – does not necessarily preclude the admission of rebuttal evidence. As this court said in Sanderson, at para. 38:

It is true that compliance with Browne v. Dunn, as a general matter, may give “notice” of potential issues that the opposing party wishes to explore. That does not mean, however, that every suggestion put to a witness in compliance with the rule in Browne v. Dunn, or any question which foreshadows a possible attack on a witness’s credibility, necessitates the Crown calling evidence on the issue in its case in chief. Such a rule would amount to chasing every shadow. This is particularly true where the witness has not accepted a suggestion advanced and where, at the end of the Crown’s case, the witness has not been successfully impeached. [Emphasis added.]

[18] This is important because, at the end of the Crown’s case, there was no evidence that the appellant did not live with his parents at the time of the February allegation. Even though defence counsel satisfied the rule in Browne v. Dunn by suggesting to the complainant that the appellant did not live with his parents in January and February, the complainant disagreed, maintaining that when she and the appellant got back together, in January, he was living with his parents. The issue did not gain significance until the defence called the appellant’s mother, who testified that the appellant did not live at her home when the first alleged assault occurred.

[19] Before closing its case, the Crown did not know, and could not have known, that the appellant’s mother was going to testify, let alone what her testimony would be. Recall that defence counsel simply put an alternative timeline (for when the appellant was living at his parents’ home) to the complainant; counsel did not, for instance, indicate that she anticipated the appellant’s mother would say something to contradict her. Nor did Crown counsel know that there were photographs of the complainant at the appellant’s family home, time-stamped with a January 2019 date, until the complainant informed her.

[20] Lastly, the precise date, or even the month, was not material to the trial judge’s decision to find the appellant guilty. The complainant testified that she was sexually assaulted on three occasions, and she placed them all approximately in a five-month time period. Whether the first incident occurred in February or March had no bearing on the other two allegations. Even the appellant’s trial counsel agreed that the date was not an essential issue to be determined in this case.

W.(D.)

[21] The appellant argues that the trial judge failed to properly apply the principles set out in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 to his mother’s evidence that he did not reside at the family home during at least the early part of the relevant timeframe. Instead of asking whether the appellant’s mother’s evidence was capable of raising a reasonable doubt, even if not believed, he asserts that the trial judge treated the case as a “reliability contest” between the complainant and the appellant’s mother.

[22] I reject this submission. There was no W.(D.) error.

[23] Trial judges are presumed to know the law, and are not required to recite W.(D.) mechanically. The question is whether the reasons, read as a whole, demonstrate that the trial judge understood and properly applied the threshold of proof of guilt beyond a reasonable doubt: R. v. Flynn, 2010 ONCA 424, at para. 5; R. v. Karas (2006), 2006 CanLII 19326 (ON CA), 211 O.A.C. 260, at paras. 5-6.

[24] The trial judge did not treat the case as a contest in which she had to choose whether to believe the complainant or the appellant’s mother. She understood the Crown’s obligation to prove the charge beyond a reasonable doubt, and her reasons demonstrate that she applied that standard.

[25] The complainant’s evidence about the date of the first incident (specifically, that it occurred when the appellant lived at his parents’ home) did indeed conflict with the testimony of the appellant’s mother. The trial judge addressed this conflict in the evidence, as she was required to do. She did not make an adverse credibility finding against the appellant’s mother, and neither did she make a sweeping assessment of her reliability. She simply found that, on the question of when the appellant lived with his parents, his mother was mistaken:

I am also satisfied that [the appellant’s mother] is a reliable witness. There was understandably much made about timelines including the February 2019 date of the first incident. I am satisfied that [she] was mistaken on her account that the [appellant] and [the complainant] were not together in her home before March of 2019. I accept [the complainant’s] memory of when the incidents occurred. She placed them into a general time frame and commented on the winter conditions on at least one of them.

[26] Given the complainant’s evidence, and the photographs depicting her at the appellant’s mother’s home in January 2019, this finding was available to the trial judge.

Authentication of the Photographs

[27] The appellant submits that the photographs tendered through the complainant were not properly authenticated, and therefore should not have been admitted. He relies on this court’s decision in R. v. Aslami, 2021 ONCA 249, 155 O.R. (3d) 401, specifically at para. 30:

[T]rial judges need to be very careful in how they deal with electronic evidence of this type. There are entirely too many ways for an individual, who is of a mind to do so, to make electronic evidence appear to be something other than what it is. Trial judges need to be rigorous in their evaluation of such evidence, when it is presented, both in terms of its reliability and its probative value.

[28] I agree with the Crown that Aslami is of limited assistance to the appellant. Aslami was about what weight to give electronic documents, not about – as in this case – their admissibility. The appellant’s objection is that the trial judge did not properly attend to the reliability and probative value of the documents in deciding to admit them. He argues in particular that “[m]ore caution was required when assessing this electronic evidence especially considering the fact that these photos were actually ‘screenshots’ transferred to the complainant on Snapchat from a third party who never testified.”

[29] I am not persuaded by this submission. It is true that a party seeking to file an exhibit must authenticate it. However, as this court discussed in R. v. C.B., 2019 ONCA 380, 146 O.R. (3d) 1, at paras. 66-68, the threshold for doing so is low:

At common law, authentication requires the introduction of some evidence that the item is what it purports to be: R. v. Donald, 1958 CanLii 470 (NB CA), [1958] N.B.J. No. 7, 121 C.C.C. 304 (C.A.), at p. 306 C.C.C.; R. v. Staniforth, 1979 CanLII 4477 (ON CA), [1979] O.J. No. 1026, 11 C.R. (3d) 84 (C.A.), at p. 89 C.R.; R. v. Hirsch, [2017] S.J. No. 59, 2017 SKCA 14, 353 C.C.C. (3d) 230, at para. 18. The requirement is not onerous and may be established by either or both direct and circumstantial evidence.

For electronic documents, s. 31.1 of the [Canada Evidence Act] assigns a party who seeks to admit an electronic document as evidence the burden of proving its authenticity. To meet this burden, the party must adduce evidence capable of supporting a finding that the electronic document is what it purports to be. Section 31.8 provides an expansive definition of “electronic document”, a term which encompasses devices by or in which data is recorded or stored. Under s. 31.1, as at common law, the threshold to be met is low. When that threshold is satisfied, the electronic document is admissible, and thus available for use by the trier of fact. [Emphasis added.]

[30] The Crown met this low threshold by re-calling the complainant, who testified that the photographs, and specifically the date and time stamps, were all accurate. They were all from the same day – January 9, 2019 – and the complainant specifically remembered that day because it was a school night and both she and her sister stayed over at the appellant’s home. The complainant also recalled that this was the “first or second time” that she had been back at this residence since the appellant moved back in.

[31] It is important to note that the authenticity of the photographs was not an issue at trial. Once the trial judge determined that the complainant could be re-called to give rebuttal evidence (an issue that was contested), the appellant did not challenge the authenticity of the photographs. During closing submissions, instead of arguing that the date and time stamps were inaccurate, defence counsel argued that the photographs did not prove what the Crown said they did – that the appellant lived at his parents’ home when they were taken. The dispute was over what inference could be drawn from the photographs, not about when and where they were taken.

[32] The trial judge did not err by admitting the photographs into evidence.

Conclusion

[33] For these reasons I would dismiss the appeal.

Released: January 15, 2025 “P.D.L.”

“J. George J.A.”

“I Agree. P. Lauwers J.A.”

“I Agree. J. Copeland J.A.”

[^1]: This appeal is subject to two publication bans: one pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46, and one pursuant to s. 110 of the Youth Criminal Justice Act, S.C. 2022, c. 1.

[^2]: At the joint request of the parties, the trial judge made an order excluding witnesses at the start of the trial. The terms of the order were clear that after a witness had testified, they were free to remain in the courtroom.