WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct 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) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: September 24, 2019

Court File No.: Hamilton 19-4653

Between:

Her Majesty the Queen

— and —

E.L.

Before: Justice P.H.M. Agro

Heard on: July 10th, 11th, and 23rd, 2019

Reasons for Ruling released on: September 24, 2019

Counsel

Mr. J. Levy — counsel for the Crown

Mr. J. Abrams — counsel for the accused E.L.

Reasons for Ruling

Justice Agro:

Introduction

[1] The accused is charged with sexual assault and sexual interference. The complainant is a six-year-old child, daughter of his now former common law spouse.

[2] The only testimony of the particulars of the allegations comes from the child.

[3] The mother of the complainant is the mother of two children from a previous relationship, and the youngest daughter is the child of the accused.

Events Preceding the Charges

[4] The alleged events are stipulated in the information as having occurred on or between September 1, 2017 and January 10, 2018.

[5] The complainant first disclosed an incident to her mother. That disclosure was prompted by a "good touch/bad touch" discussion initiated by the mother. It was not until the second day of this continuing discussion that the complainant made any accusation against the accused.

[6] The mother did not reveal anything to the accused but reported what the complainant said to Hamilton police on January 11, 2018. She was directed to take the complainant to McMaster Children's Hospital for a physical examination and was accompanied by a Hamilton Children's Aid Society worker.

[7] On the advice of police, the mother and the children did not return home that day.

[8] According to the accused, he tried to reach the mother by text message asking where she was and inquiring about matters relating to their jointly operated mobile glass installation business that needed to be tended to that day.

[9] The mother did not respond to the accused other than to say she had taken care of the business issues. She did not let him know of her whereabouts. She remained at her brother's home in Coburg until she, the complainant, and the younger brother each gave formal statements to police on January 16, 2018.

[10] This was not the first time the mother had left the accused. From time to time she would leave with the children, returning after a few days of absence. In the few months before the allegation surfaced, the relationship was on tenuous ground and the number of these absences were increasing. The mother had long been suspicious that the accused was cheating on her and was, by her own admission, very jealous and insecure in the relationship. According to the accused, her abuse of alcohol exacerbated the intensity of her jealousy.

[11] From Thursday, January 11th, the accused continued to try to reach the mother but his messages went unanswered. Because the mother had taken the business vehicle, the accused could not work the glass installation business.

[12] Not knowing where the mother and the children were, or that the complainant had made an allegation against him, the accused left for Honduras on January 14th to visit his aunt and grandfather. His mother was to join him there later.

[13] Some days later, while in Honduras, the accused learned from a relative that the mother had called in a drunken state alleging some kind of misbehaviour, described to the accused as "crazy talk" about his touching the complainant but there were no details.

Events After the Charges

[14] Detective Lejeune of Hamilton Police contacted the accused by email on January 17, 2018. He identified himself as the officer who had spoken with the accused a year prior regarding an incident with the younger brother and told him he was investigating "another matter" and wanted to speak with him personally. In a subsequent telephone discussion, Lejeune told the accused he was unable to provide any details and asked the accused about his plans to return to Canada, advising that he, Lejeune, would not be available until after January 28.

[15] It should be noted that Lejeune had conducted an earlier investigation of the accused regarding the discipline of the younger brother that included Children's Aid Society involvement. That matter did not result in charges.

[16] From Honduras, the accused then contacted legal counsel in Hamilton with a view to finding out further details about Lejeune's need to see him. Through counsel he learned there was a warrant for his arrest. His recollection was the allegation was something sexual to do with the complainant but he had no further details or information about the specifics of the allegation.

The Arrest and Statement

[17] The accused voluntarily returned to Canada on February 14, 2019. On arrival at Pearson airport at approximately 3pm, the accused advised Canada Border Services officers of the warrant. He was detained in a locked room pending the arrival of Hamilton Police. He was provided rights to counsel by a Canada Border Services officer but no information about the particulars of the charges against him.

[18] At 7:45pm custody of the accused was transferred from Canada Border Services officers to PC Rochner who formally arrested the accused on the warrant, told him of the two charges and provided him with rights to counsel and caution.

[19] At no time while at the airport did the accused speak to counsel and there was no conversation about the charges while en route to Hamilton.

[20] On arrival in Hamilton, after booking, the accused had a formal videotaped interview with Detective Kitchen.

[21] Although afforded rights to counsel at the police station, the accused declined to exercise those rights. The defence does not challenge the voluntariness of the statement.

[22] It was during the interview that Detective Kitchen explained in layman's terms what the two charges meant and specifically that the complainant had alleged that while in the master bedroom, the accused had removed her clothing as well as his own, got on top of her and inserted his penis in her vagina.

[23] Once the details were put to him, the accused's response was immediate. He was visibly upset and crying and lamented the loss of his family. He denied any misconduct toward the complainant.

The Defence Application

[24] At trial, the accused brought an Edgar application to permit the introduction into evidence his videotaped statement made to police on February 14, 2018 to demonstrate his reaction to the accusation, not for the truth of it, but for the purpose of assisting in the assessment of his credibility.

[25] A voir dire was conducted for that purpose. Counsel have agreed that the voir dire evidence would apply on the trial itself.

Legal Principles

[26] In Edgar, the Court of Appeal for Ontario held that where an accused testifies, an exculpatory segment made on arrest may be admissible at the request of the defence, notwithstanding those statements being "self-serving" and contrary to the prior consistent statement rule.

[27] The legal principles relating to the admissibility of an exculpatory out of court statement given by an accused were summarized by the Ontario Court of Appeal in R. v. Liard, 2015 ONCA 414. In that decision the court set out three requirements to be met by an accused to put a previous exculpatory statement into evidence:

1. The accused must testify.
2. The statement must be made when the accused was arrested or when first accused of committing a crime.
3. The statement must be spontaneous.

[28] In Liard, the Court also confirmed that "the accused bears the onus of establishing that the statement was spontaneous and made when first confronted with an accusation" (para. 74).

[29] Consistent statements that have been held to have probative value include statements to demonstrate an accused's state of mind.

[30] Statements admitted under the Edgar exception are not, however, admissible for the truth of their contents. In Liard, the Court of Appeal stated, at para. 49:

The statements are evidence of an accused's reaction to being accused of a crime and are relevant to show consistency with an accused's trial testimony. Thus, although not admissible for the truth of their contents they are relevant to an accused's credibility and as a piece of circumstantial evidence bearing on an accused's immediate reaction to an accusation of a crime may be more reliable and more probative than the accused's testimony given years later in a courtroom.

[31] The principles in Edgar were also explained by the Ontario Court of Appeal in R. v. Badhwar, 2011 ONCA 266, at para. 17:

Edgar stands for the proposition that "it is open to a trial judge to admit an accused's spontaneous out-of-court statements made upon arrest or when first confronted with an accusation as an exception to the general rule excluding prior consistent statements as evidence of the reaction of the accused to the accusation and as proof of consistency, provided the accused takes the stand and exposes himself or herself to cross-examination". The statement does not go in for its truth (unless it is otherwise admissible as original evidence) but "is evidence of the reaction of the accused, which is relevant to the credibility of the accused and as circumstantial evidence that may have a bearing on guilt or innocence".

[32] In Liard, the Court of Appeal gave specific consideration to the requirement that the statement must be spontaneous (at paras. 62-64):

(1) The requirement that the accused's statement be spontaneous is the critical requirement for admissibility under the Edgar exception. Spontaneity is what gives the statement its probative value and justifies its admission. A spontaneous reaction is more likely "to truly reflect the individual's honest and genuine reaction to the allegation", and thus is more likely to be a reliable reaction. Conversely, when an accused has an opportunity to "think things through", the spontaneity of the statement is diminished, and in some cases eliminated altogether.

(2) No single consideration, no single point in time, determines whether the spontaneity requirement has been met. The passage of time between the crime and the accused's reaction to an accusation of committing it, and any intervening events, are undoubtedly relevant. But spontaneity lies along a spectrum. And along that spectrum, the degree of spontaneity may vary. In Edgar itself, the accused made three statements -- the third, four hours after he was arrested. Sharpe J.A. held that all three statements were admissible.

(3) Thus, in determining whether an accused has satisfied the spontaneity requirement, the trial judge must consider all the circumstances of the case -- the passage of time, any intervening events, and the making of the statement itself. Importantly, as Sharpe J.A. pointed out in Edgar, at para. 69, when in doubt about spontaneity, the trial judge should admit the statement and allow the jury to assess its weight. Proper jury instructions can eliminate any risk of the jury's misuse of the statement.

[33] Justice Moldaver in Badhwar, quoting Justice Sharpe in Edgar, approaches spontaneity as both a continuum going to weight and a threshold going to admissibility.

[34] The requirement of spontaneity has been repeatedly emphasized in more recent decisions including R. v. K.T., 2013 ONCA 257; R. v. Hong, 2015 ONSC 5583; R. v. Dawson, 2018 ONCA 458; and R. v. York-Denomme, 2018 ONSC 864.

Analysis in View of the Edgar Prerequisites

1. The Accused Must Testify

[35] In this case, the accused has satisfied the requirement of testifying and submitting himself to cross-examination.

2. The Statement Must Be Made When the Accused Was Arrested or When First Accused of Committing a Crime

[36] There was some argument by the Crown that the accused had knowledge of the accusation while in Honduras.

[37] I do not impute that knowledge as having come from the mother. She did testify about contact with the accused while in Honduras, describing a number of text messages in which she said she "would have" accused the accused of being a pedophile. She used that turn of phrase frequently in her testimony. She was vague about when those messages were sent.

[38] She also testified that she "must have" told the accused the allegation related to the complainant but didn't provide him details as she had none.

[39] She did acknowledge speaking with the accused's sister and telling her that the complainant had made an allegation against him, but did not provide the sister any details.

[40] The accused testified that his only contact with the mother was by text message as telephone and internet service in that country are sporadic and unreliable. He denied receiving any text message accusing him of being a pedophile.

[41] Overall, the mother's testimony about her contact with the accused while he was in Honduras was vague and scattered. Her testimony was a reconstruction of what she thought she would have or might have done or said rather than her best recollection of what she did do or say. I do not find her to be a reliable historian of any of those events.

[42] The accused testified that when his mother arrived in Honduras, he pressed her for details of what the mother had told his family but there was no information forthcoming other than what was described to him as "crazy talk" about his touching the complainant but they had no specifics.

[43] Detective Lejeune testified about his email contact with the accused while he was in Honduras and confirmed that he gave no information to the accused about the nature of the charges nor the details of the allegation against him in that email.

[44] Lejeune did say that in a subsequent telephone conversation with the accused, he found him distraught and crying about the break up of his relationship with the mother and the accused told him he knew there were allegations. Lejeune again confirmed that he did not give the accused any information about the charges or details of the allegation against him.

[45] I accept the accused's testimony that the first reliable information he received about actual charges came from his then counsel, Joseph Fiorucci. I accept the accused's testimony that he still had no details of the allegation beyond what he understood to be sexual matters involving the complainant and there being a warrant for his arrest.

[46] It was pointed out in R. v. Reis, [2017] O.J. No. 184, that the Court of Appeal of Ontario in Liard, at para. 55, indicated that the initial "confrontation" referred to in Edgar could also involve civilians. Laskin, J.A. wrote at para. 56 of Liard:

But the confrontation must include an accusation of a crime. Statements by civilians – even confrontations – which are not accusatory, will not affect the spontaneity of an accused's reaction to a later police accusation of a crime.

[47] I find that the sparse information the accused had while in Honduras, including the information from counsel Fiorucci, does not amount to an accusation of a crime, by any person in authority nor was there a confrontation by any civilian amounting to an accusation.

[48] I find that the first meaningful accusation and confrontation was at Hamilton Police Station, approximately one hour or so after arrest. It was during that interview that the accused had a meaningful understanding of the allegation against him, its particulars and the jeopardy he was in.

3. The Statement Must Be Spontaneous

[49] I acknowledge that while in Honduras, the accused had time to think what the allegation might be. However, as he testified, and the mother confirmed in part, he was accustomed to the mother making allegations about his infidelity, including with family members.

[50] While giving his statement to Detective Kitchen, the accused had limited options: an admission, a denial or an alibi.

[51] There is little risk on the Crown theory of these allegations, that the accused could concoct an exculpatory fabrication on the facts, nor would an alibi be a plausible explanation as it would entail having three children under the age of six alone in the house without any adult supervision.

[52] In this case, the defence does not seek admission to the statement to support the consistency of his denial, but to demonstrate the accused's reaction to the charges when first confronted. That is an established exception under Edgar.

[53] When cross-examined on the statement, the Crown challenged the accused on the sincerity of his reaction and emotional breakdown, however that would be an issue for me to consider in assessing the weight to ascribe to that reaction, not its admissibility.

[54] The statement in Liard, by Laskin, J.A., at paragraph 63, bears repeating:

No single consideration, no single point in time, determines whether the spontaneity requirement has been met. The passage of time between the crime and the accused's reaction to an accusation of committing it, and any intervening events, are undoubtedly relevant. But spontaneity lies along a spectrum. And along that spectrum, the degree of spontaneity may vary.

[55] I take no issue with the spontaneity of the statement. The time between the arrest and the accused first learning of the details of the accusation was not unduly long. He did not avail himself of the right to counsel once he landed in Toronto or thereafter.

[56] For these reasons, the DVD statement taken by Detective Kitchen of Hamilton Police Services on February 14, 2018, marked as exhibit A on the voir dire, and the transcript thereof, exhibit B, will be admitted on the trial and marked as the next numbered exhibit.

[57] The weight to be given to that evidence will be assessed within the context of all of the evidence at trial.

Released: September 24, 2019

Signed: Justice P.H.M. Agro