COURT OF APPEAL FOR ONTARIO

CITATION: R. v. N.G., 2025 ONCA 66[^1]

DATE: 20250127

DOCKET: M55684 (COA-24-CR-1114)

Lauwers J.A. (Motion Judge)

BETWEEN

His Majesty the King

Respondent

and

N.G.

Applicant/Appellant

Nader R. Hasan and Olivia Eng, for the applicant/appellant

Catherine Weiler, for the respondent

Heard: January 16, 2025

On appeal from the convictions entered by Justice Susan M. Magotiaux of the Ontario Court of Justice on June 27, 2024 and from the sentence imposed on September 5, 2024.

REASONS FOR DECISION

(1) Overview

[1] The applicant, N.G., was convicted of sexually abusing his eldest daughter, H.G., over a period of 11 years, from when she was 7-18 years old. Specifically, he was found guilty of the following offences under the Criminal Code, R.S.C. 1985, c. C-46:

• Sexual assault contrary to s. 271;

• Sexual interference contrary to s. 151; and

• Sexual exploitation contrary to s. 153.

The trial judge described the applicant’s conduct as “a terrible, prolonged course of sexual abuse and exploitation” and sentenced him to eight years imprisonment.

[2] The applicant seeks bail pending appeal, on substantially the same conditions as those on which he was released after he was charged pending his trial and sentencing. The Crown opposes bail pending appeal. These reasons explain why I dismiss the application.

[3] N.G. appeals from his conviction on the basis that the trial judge erred in admitting and relying on multiple prior consistent statements by the complainant for the impermissible purpose of bolstering the complainant’s credibility, and erred in disregarding certain evidence from a defence witness based on the rule in Browne v. Dunn (1893), 1893 65 (FOREP), 6 R. 67 (H.L.).

[4] Counsel advises that N.G. will also likely appeal his conviction on the ground of ineffective assistance of counsel (“IAC”). Counsel asserts that, although not all steps required by the IAC protocol have been completed, there is prima facie merit to the claim. This case turned on the credibility of the complainant and the accused, but trial counsel allegedly failed to adequately prepare N.G. to testify. Trial counsel did not show N.G. the lengthy videotaped statement he gave to police, nor provide him with a transcript of that statement, and did not provide N.G. with an opportunity to watch either of the complainant’s two video statements or give him a copy of the transcripts.

[5] The appellant intends to argue that this lack of preparation adversely impacted the effectiveness of the defence’s cross-examination of the complainant and undermined N.G.’s testimony. The trial judge did not find the applicant credible. Counsel argues that had N.G. been given the opportunity to review his police statement – the primary prior statement on which he was cross-examined – it is likely that he would have been more prepared for cross-examination.

(2) The Governing Principles for Bail Pending Appeal

[6] For bail pending a conviction appeal, the applicant must establish the three elements set out in s. 679(3) of the Criminal Code: (1) that the appeal or application for leave to appeal is not frivolous; (2) that he will surrender himself into custody in accordance with the terms of the order; and (3) that his detention is not necessary in the public interest.

[7] The Crown does not argue that the applicant is a flight risk or that he is a danger to the public. The Crown opposes bail pending appeal in the public interest, on the basis that the grounds of appeal do not clearly surpass the “not frivolous” standard and the applicant poses public safety concerns, which must factor into the public interest analysis.

[8] The Supreme Court held in R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 23-26, that the public interest element must be tested under the framework set out by this court in R. v. Farinacci (1993), 1993 3385 (ON CA), 86 C.C.C. (3d) 32, (Ont. C.A.), per Arbour J.A. (as she then was). I am obliged to weigh the factors of reviewability and enforceability.

[9] Under s. 679(3)(c) of the Criminal Code, there are two components to consider: public safety and public confidence in the administration of justice: Oland, at para. 23; Farinacci, at pp. 47-48. The Crown raises public safety concerns due to the nature of the offence, although “none reach the substantial risk mark.” The second component, public confidence, is primarily engaged in this application. Consideration of the public confidence component involves striking the balance between enforceability and reviewability: see R. v. R.B.-M., 2024 ONCA 787, at para. 11.

(a) Enforceability

[10] With respect to enforceability, “[p]ublic confidence in the administration of justice requires that judgments be enforced”: Farinacci, at para. 48.

[11] As noted in Oland, at para. 37, the seriousness of the crime figures in the assessment of the enforceability interest. This court has identified sexual offences relating to children as being on the higher end of the gravity spectrum in the context of bail pending appeal applications: R. v. J.B., 2023 ONCA 264, at para. 17, citing R. v. M.S., 2022 ONCA 348, at para. 15; R. v. C.M., 2023 ONCA 700, at para. 5; R. v. G.B., 2023 ONCA 621, at para. 10; R. v. J.C., 2023 ONCA 617, at para. 6; see also R.B.-M., at para. 16; R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, at para. 74. Undoubtedly, the enforceability interest weighs heavily in this case.

(b) Reviewability

[12] Reviewability acknowledges that “our justice system is not infallible and that persons who challenge the legality of their convictions should be entitled to a meaningful review process — one which did not require them to serve all or a significant part of a custodial sentence only to find out on appeal that the conviction upon which it was based was unlawful”: Oland, at para. 25, citing Farinacci, at pp. 47-49.

[13] The Supreme Court noted in Oland that “in assessing the reviewability interest, the strength of an appeal plays a central role”: at para. 40. The grounds of appeal must “clearly surpass the minimal standard required to meet the ‘not frivolous’ criterion” (emphasis added): Oland, at para. 44.

(3) Application to the Merits

[14] I will focus on the two errors the applicant asserts the trial judge made: first, in admitting and relying on multiple prior consistent statements by the complainant for the impermissible purpose of bolstering the complainant’s credibility; and second, in disregarding certain evidence from a defence witness based on the rule in Browne v. Dunn. I will not address the allegation that the applicant was ineffectively assisted by defence counsel at trial because it could not be fully argued on the undeveloped record. I was not persuaded that this is a prima facie case of ineffective assistance of counsel.

(i) Was there improper reliance on prior consistent statements?

The Governing Principles on Prior Consistent Statements

[15] The case of R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, at paras. 25-40, sets out the principles affecting the admissibility of prior consistent statements. Of particular relevance is Hourigan J.A.’s careful distinction between the hearsay element and the declaration element, noted in para. 26:

As Watt J.A. noted in C. (M.), at para. 59, citing Paciocco, at p. 184, prior consistent statements are an amalgam of two elements -- the hearsay element and the declaration element. The hearsay rule takes care of the hearsay element. The prior consistent statement rules generally exclude the declaration [page528] element. Where admissible, the declaration element is proof that a statement was made, and allows a trier of fact to derive appropriate inferences from the fact and context in which the statement was made: Paciocco, at p. 184 [David M. Paciocco, “The Perils and Potential of Prior Consistent Statements: Let’s Get it Right” (2013) 17:2 Can. Crim. L. Rev. 181.

[16] Hourigan J.A. discussed several exceptions to the basic rule that prior consistent statements are inadmissible: at paras. 27-31. The first, which is alive in this case, is where the statement is admitted to rebut an allegation of recent fabrication: at para. 28. He added, at para. 29, “Other recognized exceptions include admitting prior consistent statements as pure narrative evidence, and narrative as circumstantial evidence”. Hourigan J.A. noted that “narrative as circumstantial evidence” may allow the narrative statement to be used more substantively: at para. 31. This is especially relevant in cases involving sexual assaults on young children: see R. v. C. (G.), 2006 18984 (ON CA), [2006] O.J. No. 2245 (C.A.), at para. 22. Hourigan J.A. then stated: “In the appropriate case, prior consistent statements can be useful tools in assisting a trial judge in the assessment of the truthfulness or reliability of the declarant, whatever their age”: Khan, at para. 33, citing R. v. M.C., 2014 ONCA 611, 314 C.C.C. (3d) 336, at para. 66.

Application of the Principles Regarding Prior Consistent Statements

[17] The applicant argues that the trial judge improperly admitted “multiple prior disclosures by the complainant about the alleged sexual abuse”. These were inadmissible prior consistent statements on which the trial judge relied “to bolster the complainant’s credibility and reject” N.G.’s evidence.

[18] The Crown has helpfully organized the complainant’s disclosures into four categories: “i) HG’s disclosures to her mother (at ages 11-13 and many times as an adult); ii) HG’s disclosures to her friend M (between the ages of 13-15); iii) HG’s disclosure to her sister SG (at age 16), elicited by the defence; and iv) HG’s disclosures to extended family and S.S. (ages 17-20).”

[19] The applicant notes that “the defence eventually did raise a limited allegation of recent fabrication” but argues that “the prior consistent statements admitted at trial either did not meet the requirements for that exception, or were elicited by the Crown well before the defence did anything to trigger it.” The complaint is that the Crown elicited these statements in examining the complainant in-chief, “before any cross-examination by the defence could have put an allegation of recent fabrication in issue.” The Crown disputes this point. Regardless, the applicant submits that “Even if it was implicit that [N.G.’s] defence would be to deny the truthfulness of the complainant’s account, that was not enough to trigger the exception.” There was no advance ruling and no voir dire.

[20] The applicant takes particular issue with a disclosure made to a witness when the complainant was 20 years old, asserting that it “should not have been admitted at all because it occurred after the motive to fabricate arose.” On the defence’s theory, that motive was in response to the “strict household and religious rules” imposed on the complainant by the applicant. Even if this statement should not have been admitted, it can reasonably be assumed not to have played a significant role in light of all the other and earlier disclosures.

[21] The complainant’s earlier disclosures to her mother (at ages 11-13) and to her friend M (between the ages of 13-15) appear to be admissible both under the recent fabrication exception and as narrative relating to the abuse of a child. The applicant does not criticize the trial judge’s self-instructions around the use of the statements. The problem, counsel says, is in the way she used the statements “for the truth of their contents and as supporting the complainant’s overall credibility.”

[22] It is not my role on a motion for bail pending appeal to parse these statements and effectively decide the appeal. The subtleties are difficult; as this court laid out in Khan, some such use of the prior consistent statements as part of the narrative is not obviously improper.

[23] I therefore find the prior consistent statement arguments to be not frivolous, but weak.

(ii) Was there a Browne v. Dunnerror?

[24] The applicant’s argument is succinctly stated in his factum:

The defence theory was that [N.G.] never sexually touched his daughter. He did, however, engage in non-sexual physical acts of affection (hugging, pinching, tickling, pats on the bottom), which the complainant grew to resent as she got older and the rift between the complainant and her father grew. Over time, the non-sexual touching metastasized into sexual touching in the mind of the complainant.

S.G.’s evidence strongly corroborated this defence theory. S.G., who was H.G.’s sister and close to her in both age and relationship, confirmed that the complainant had previously made a disclosure of the sexual touching to S.G.. S.G. was surprised to hear the allegation, but noted that the complainant went on to state that the sexual touching was happening to S.G. too. Since S.G. knew that she had never been sexually assaulted by her father, this caused her to doubt the reliability of the complainant’s account. This evidence is consistent with the theory that H.G. had reimagined non-culpable touching as touching being done with a sexual purpose.

[25] This evidence was not put to the complainant during her cross-examination. Counsel states that this “was arguably a Browne v. Dunn error on the part of trial counsel.” This “led the trial judge to note during S.G.’s evidence that the Crown will likely ask that the court disregard this evidence because of the Browne v. Dunn error”. In fact, the trial judge gave it little weight, stating, at para. 124:

There is some potential support for the idea that HG misinterpreted normal family contact in the alleged comment by HG to SG that the abuse had happened to SG as well. SG was remembering a comment made more than 8 years ago. I accept she would have reason to remember that conversation, but I am not certain that the exact words were accurate. HG was never asked about such a comment, so there was no opportunity to explain whether she thought it was happening with her sister or what basis she may have had for that conclusion. HG may well have thought it was happening to SG or had happened. She shared that concern throughout her testimony as an important factor in her decision to ultimately come forward. I accept that HG may have suggested or asked or said something about it happening to SG but, taken in context, I do not think that the single statement so long ago is evidence that HG misinterpreted her own experiences.

[26] The applicant argues that the trial judge’s discount of S.G.’s evidence was “too draconian a remedy” for the Browne v. Dunnerror. S.G.’s evidence was “absolutely critical to making full answer and defence”, presumably because it would have undermined the complainant’s credibility if it had been taken more seriously.

[27] This argument meets the “not frivolous” test, but it is also weak. In light of all the evidence, it seems unlikely that this challenge would be able to serve as the inflection point in the appeal.

(4) Application of the Public Confidence Principles

[28] As I noted earlier, the application for bail pending appeal turns on the analysis of the public confidence element, which involves striking the balance between reviewability and enforceability.

[29] Public confidence in the administration of justice requires that judicial decision-making be reviewed and corrected, especially when an individual’s liberty is at stake: Farinacci, at p. 48; R. v. Manasseri, 2013 ONCA 647, at para. 42.

[30] The court noted in Oland that “in assessing the reviewability interest, the strength of an appeal plays a central role”: at para. 40. The grounds of appeal must “clearly surpass the minimal standard required to meet the ‘not frivolous’ criterion” (emphasis added): Oland, at para. 44. These are the trial judge’s alleged misuse of prior consistent statement evidence and her discounting of cogent evidence in response to a breach of the rule inBrowne v. Dunn. I found both grounds to be weak, but not frivolous. I am not persuaded that either of these grounds, alone or in concert, clearly surpass the minimal standard set by the “not frivolous” criterion.

[31] On the enforceability side, these are very serious offences that weigh heavily in the public interest analysis. Having been convicted, the applicant no longer benefits from the presumption of innocence: Oland, at para. 35.

(5) Disposition

[32] In balancing the reviewability interest against the enforceability interest, the relative weakness of the grounds of appeal and the seriousness of the offences lead me to dismiss this application for bail pending appeal. Nothing prevents the applicant from renewing the application when the ineffective assistance of counsel ground is fleshed out upon completion of the Ineffective Assistance of Counsel Protocol.

“P. Lauwers J.A.”

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