Court of Appeal for Ontario

Date: 2025-05-07
Docket: COA-24-CR-0160
Coram: Gary Trotter, Lorne Sossin, Mahmud Rahman

Between:
His Majesty the King (Respondent)
and
Gregory Whalen (Appellant)

Counsel:
Theresa Donkor and Chris Rudnicki, for the appellant
Dena Bonnet, for the respondent

Heard: 2025-04-25

On appeal from the conviction entered on September 28, 2023, by Justice R. Philip Campbell of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

A. Introduction

[1] The appellant was convicted of four counts of sexual assault, three counts of sexual exploitation, and one count of sexual interference. The offences were committed against his stepdaughter, V.K., in 2004 and 2005, when she was 13 and 14 years old. He received a global sentence of five years’ imprisonment. The appellant initially appealed both conviction and sentence. He has since abandoned his sentence appeal.

[2] At the conclusion of the hearing, we dismissed the conviction appeal, with reasons to follow. These are our reasons.

B. Factual Background

[3] The offences occurred when the appellant was left in charge of V.K. and her younger brother, W.K. Their mother was working at the time.

[4] The first incident involved the appellant touching V.K.’s breasts. This incident happened after the appellant gave V.K. alcohol and asked to touch her chest. She agreed, and the appellant reached underneath her clothing.

[5] The other incidents stemmed from a series of “dares” or “challenges” that involved urine. Both V.K. and W.K. testified that, if they wanted snacks in the evening, the appellant made them perform some sort of “dare” or “challenge”. At first, the appellant had V.K. urinate into a bottle and then bring it to him. These incidents escalated to the point where V.K. urinated in the appellant’s mouth, followed by cunnilingus. These incidents came to an end when V.K. started to receive an allowance and was able to acquire her own snacks.

[6] W.K. confirmed that the appellant would make them do things if they wanted snacks. W.K. also testified about a conversation he had with the appellant after he was charged with the offences against V.K. When they spoke about V.K.’s allegations, the appellant became emotional and said that he dared V.K. to “pee on [him]”. W.K. said to the appellant, “you know that’s not right”, to which the appellant said, “I know”.

[7] The Crown also relied upon three surreptitious audio recordings made by V.K.’s mother during phone calls with the appellant. These recordings are at the heart of this appeal, both in terms of their admissibility, and the adequacy of the trial judge’s instructions to the jury.

[8] The beginning of each call and possibly the end of one call were not recorded, but the rest of the conversations that were captured are clear and understandable. During these calls, the appellant did not explicitly admit his guilt to any of the criminal allegations; however, the Crown contended that a number of his utterances were admissible admissions. During the first phone call, the appellant variously said: “I made a big mistake”; “I fucked up so bad”; “it was a stupid dare, that got carried away. It, it, it got out of hand”; “I hope she’ll find it in the bottom of her heart to forgive me.”

[9] In the second phone call, the appellant admitted that he “messed it up” and wished that V.K. had spoken to him instead of pressing charges.

[10] There were other utterances, largely in the first and third phone calls, where the appellant explicitly denied any sexual wrongdoing: “I know you don’t believe me when I tell you there was nothing – I never touched [V.K.] in a sexual way … But I never, ever did; “I don’t see how it’s a criminal matter … We looking at it differently, you guys are looking at it as … I touched [V.K.] and violated her, and I didn’t. I looked at it as a stupid, stupid, stupid dare that never should have happened.”

[11] The Crown also introduced screen shots of some text messages between V.K.’s mother and the appellant. The same theme emerged – the appellant acknowledged the wrongfulness of something that happened with V.K. but denied any sexual aspect. While he referred to his actions as “retarded and stupid … very childish and dumb”, he also said, “I never molested anyone and you know that” and “I made a mistake in my past that was very stupid immature irresponsible but I never molest [V.K.] and you 100% know that and even she does.”

[12] The appellant did not testify. However, during the cross-examination of V.K., defence counsel at trial suggested to her that the appellant asked her to urinate into a bottle that he held on his chest while laying down, without making physical contact with her. She denied the suggestion. Defence counsel advanced the same theory in her closing address.

C. The Evidence was Admissible

[13] Trial counsel for the appellant brought an application to exclude the phone call evidence on the basis that the recordings are incomplete and may omit content that could lend further colour and meaning to the passages. On this basis, she submitted that the prejudicial effect of the evidence outweighed its probative value.

[14] In a written ruling, the trial judge rejected these submissions. After reviewing a number of authorities, including R. v. Merritt, 2023 ONCA 3, 165 O.R. (3d) 413, leave to appeal refused, [2023] S.C.C.A. No. 48, the trial judge concluded:

I am satisfied that it would be open to a jury to find that the recorded portions of the phone conversations were related to the subject matter of this prosecution and included Mr. Whalen’s own characterization of events giving rise to both the family division and the report of the complainant to the police. I would not exclude the recordings on the basis that they are not relevant. Rather, they seem to speak directly to the issues in this case and are logically relevant to the determinations which the jury will have to make.

[15] The trial judge also found that the potential probative value of the recordings exceeded their potential for prejudice. First, he explained that there is a great deal of “intelligible, precise content in the recordings” such that a jury could reasonably find that the appellant was reacting to the accusations against him. He further found that the appellant’s utterances could be viewed as an implicit acknowledgement of the allegations, even though he denied them. As the trial judge also observed, the conversations contained assertions of innocence. Combined, “[t]hese are questions for the jury who will have, in the three calls, a lot to think about.”

[16] In reaching this conclusion, the trial judge distinguished R. v. Ferris, 1994 ABCA 20, 149 A.R. 1, aff’d R. v. Ferris, [1994] 3 S.C.R. 756, in which fragmented utterances were excluded. He also relied upon the leading decision of the Supreme Court of Canada in R. v. Schneider, 2022 SCC 34, [2022] 2 S.C.R. 619, in which the court held that an incomplete statement may be admitted where there is sufficient context to enable the jury to give the overheard words meaning.

[17] The trial judge also noted that the jury would hear from V.K.’s mother, who might shed more light on the recordings. Lastly, the trial judge said that he would provide an instruction to the jury alerting them to the risks associated with incomplete utterances.

[18] The appellant submits that the trial judge erred in his analysis in admitting the recordings. Instead of considering them as admissions of an accused person, as defence counsel asked him to do, the appellant says the trial judge erred in not assessing the admissibility of this evidence as after-the-fact conduct or “reaction-like” evidence. We do not accept these submissions.

[19] The trial judge properly admitted the appellant’s utterances as party admissions: Schneider, at paras. 52-55; R. v. Couture, 2007 SCC 28, para. 75. The Supreme Court has held that party admissions are presumptively admissible, but may be excluded in “rare cases” if they are unreliable or unnecessary: Schneider, at para. 55; R. v. Mapara, 2005 SCC 23, para. 15.

[20] The trial judge carefully considered whether the incompleteness of the recordings rendered the statements unreliable. We see no error in his analysis or in the conclusions that he reached. As the Crown on appeal submits, this was not a case of incomplete statements; instead, it was a case of an incomplete recording. The appellant’s utterances were understandable and capable of being properly contextualized based on their content alone. It is clear that the appellant was speaking about the allegations against him. Indeed, he explicitly denies any sexual impropriety with V.K.

[21] In assessing their meaning, the jury would have been assisted by other evidence led by the Crown, including the evidence of W.K., who testified about the appellant’s dares, as well as the appellant’s admission that he asked V.K. to urinate on him. The text message evidence provided further context. The appellant did not seek to have the text message exchanges excluded at trial, nor on appeal. This is no doubt because the text messages contained explicit denials of sexual misconduct. And so did the recorded phone conversations.

[22] It was up to the jury to determine the meaning of the appellant’s utterances. The appellant’s submission that they were ambiguous, which is different from the assertion of incompleteness, is not a basis for exclusion. Moreover, to be admissible, the utterances did not need to be actual confessions to the criminal allegations. The utterances potentially advanced the Crown’s case in more modest ways, confirming V.K.’s evidence about the dares the appellant would require the children to perform.

[23] The trial judge’s weighing of the probative value versus prejudicial effect of this evidence is entitled to deference on appeal: R. v. Shearing, 2002 SCC 58, para. 73. We see no error in the balancing exercise that he undertook. The trial judge recognized the dangers involved in admitting this evidence in terms of its inculpatory potential, but he was also alive to the fact that the same set of utterances would deliver to the jury the appellant’s numerous denials of the criminal allegations against him. The trial judge also included in this balancing exercise the salutary effect of a proper warning in his instructions, to which we turn now.

D. The Trial Judge’s Instructions Were Appropriate

[24] The appellant acknowledges that the trial judge’s instructions “alerted the jury to the potential risks of a partial recording”, but that he failed to provide any instruction on “the after-the-fact nature, reaction-like nature, or admission-like nature of the evidence”.

[25] This was not a case involving “after-the-fact nature” or “reaction-like nature” evidence. The trial judge crafted instructions relating to party-admission evidence where the objection to admissibility was focused exclusively on the alleged incompleteness of the utterances and the prejudice that might flow from that alleged deficiency.

[26] Taking a functional approach to the review of jury instructions, as required by cases such as R. v. Abdullahi, 2023 SCC 19, 2023 SCC 119, 483 D.L.R. (4th) 1, the trial judge’s instructions provided the jury with proper guidance on how to deal with this aspect of the evidence.

[27] To begin with, the trial judge provided the jury with a caution against propensity reasoning based on evidence that might have reflected poorly on him as a partner or a parent.

[28] After summarizing the content of the recorded conversation, the trial judge’s instructions included the following:

I instruct you to keep in mind that the transcripts and tapes do not purport to be complete accounts of what was said or written between Mr. Whalen and [V.K.’s mother]. Rather, they are selective extracts from larger and ongoing communications, which [V.K.’s mother] was able to “pick and choose” among for production to the police on the court. Other unrecorded or unpreserved passages in both the written and phone communications might have cast in a different light what has been placed before you and altered its meaning or its significance to the case. You should be cautious in relying upon the calls and messages and aware of the risks and limitations associated with them.

[29] The trial judge elaborated on this passage later in his instructions. He said:

What Mr. Whalen says in these two forms of communication may be used by you as evidence in support of both parties’ positions, including passages the Crown relies on as admissions by him and assertions his defence relies on.

As I've instructed you, assertions in his favor may be considered in deciding if his guilt has been proved or if there's reasonable doubt about it or, if indeed because you believe what he said, his guilt has been disproved. I won't repeat that instruction but refer you back to it.

How you assess words spoken or written by Mr. Whalen in the tapes and texts is for you to consider. As you consider this, however, you should remember that it is the words of Mr. Whalen that may be used as evidence, not the words of [V.K.’s mother]. Negative things said by [V.K.’s mother] about Mr. Whalen, including descriptions of him as a “molester” or a “criminal” or as “sick” are not evidence you can rely upon in deciding Mr. Whalen’s guilt or innocence. They can only be used, if they are used at all to give meaning and context to anything said by Mr. Whalen in the exchanges, as you decide what use, if any, you make of his words.

[30] The trial judge instructed the jury on the potential exculpatory value of the appellant’s utterances during his recorded telephone conversations, reminding the jury that even if not believed, they may still amount to reasonable doubt.

[31] In all of the circumstances, the trial judge’s instructions equipped the jury to deal with this evidence in an appropriate manner. This task was complicated by the fact that some of the utterances were capable of assisting the appellant in his defence. Defence counsel at trial had significant input into these instructions. She registered no objection after they were delivered.

[32] We would not give effect to this ground of appeal.

E. Conclusion and Disposition

[33] The appeal from conviction is dismissed. The sentence appeal is dismissed as abandoned.

“Gary Trotter J.A.”
“L. Sossin J.A.”
“M. Rahman J.A.”

[1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, RSC 1985, c C-46.