ONTARIO COURT OF JUSTICE DATE: 2022·04·22 NEWMARKET

BETWEEN:

HER MAJESTY THE QUEEN — AND — I.F.L.

RULING ON OBJECTION – CASE SPLITTING

NOTE: A s 486.31 publication ban applies prohibiting the publication of any information that could identify a witness in this case.

Heard and Delivered: 22 April, 2022.

Counsel: Mr. Greg Elder.......................................................................................... counsel for the Crown Mr. Ralph Steinberg.......................................................................... counsel for the defendant

KENKEL J.:

Introduction

[1] The defence objects to a question put in cross-examination that they say would lead to the disclosure of the contents of text messages sent between the complainant and the accused in the hours after the alleged incident. The defence objects on three grounds. First, that the text messages were not disclosed, even after a specific request for that disclosure. Second, the Crown indicated in an email that they were not adducing the text messages in evidence. Third, the defence submits that the questions would be unfair as the Crown is splitting its case. The Crown could have led evidence of the text messages but chose not to do so and now they gain an unfair advantage by referring to that evidence in cross-examination.

[2] The Crown acknowledges that the texts were not disclosed as neither they nor the police ever had direct copies of those messages. Both parties were aware of the texts though because they were read from the complainant’s cellphone verbatim by the Officer-in-Charge during the initial interview of the complainant. It’s that evidence to which the Crown now refers. Aside from the fact that the accused was allegedly a party to the text conversation and would be aware of the contents, the defence was aware of this evidence as discussed in Mr. Steinberg’s email to the Crown on April 11, 2022.

[3] Mr. Steinberg is correct that when he asked the Crown whether there would be further disclosure of that specific evidence beyond the video, the Crown’s response indicated that they did not plan to ask the officer to seize that evidence as it would not be admissible on the part of the Crown. The Crown explained on this voir dire that the rule against prior consistent statements and “oath helping” prevented them from tendering the text messages sent by the complainant. The Crown also observed in their email response of April 11, 2022, that the same rule would prevent the defence tendering any exculpatory responses by the accused.

[4] I agree with the Crown that they could not have adduced the proposed text messages by the complainant as prior consistent statements as part of their case. There was no purpose to their introducing any exculpatory responses of the accused and it would have been potentially misleading to isolate that evidence out of context. It's important to note that Mr. Elder did not undertake not to call the evidence, he merely provided his opinion as to why neither party could call that evidence in-chief concluding, “But that’s just my two cents”.

[5] Evidence that is not admissible during the Crown’s case may become admissible if it becomes relevant to issues raised in the defence evidence. In this case the defendant is testifying in-chief, but it’s already plain that his position is an outright denial that the central incident happened. He testified that he arrived home that evening and went to bed and nothing unusual occurred. The Crown takes the position that the text messages now become relevant not as prior consistent statements, but to rebut an allegation of recent fabrication.

[6] The complainant was cross-examined over parts of two days. While the defence carefully challenged many of the details of her testimony, it was never put to her that she fabricated the allegation of sexual assault. I disagree with the defence that such a suggestion was plain. As Mr. Steinberg fairly pointed out, after cross-examination there remained two possibilities: that the defendant denied the allegations outright or he relied upon a different version of the facts. There are many variations on the second possibility including agreement with many of the facts but not particular allegations, agreement with the facts but an assertion of consent, or agreement with certain facts but an assertion that certain acts were incidental or involuntary. Leaving aside the rule in Browne v Dunn, (1893) 6 R 67, the defence is not obliged to disclose its case. I find the Crown could not have known the specific nature of the defence until the accused took the stand.

[7] I find the Crown has not split its case by purposely withholding evidence. Evidence which was not relevant up to the time the Crown closed its case has now become potentially relevant given the testimony of the accused. I find the Crown should not be barred from asking questions regarding the text messages. It appears likely that that evidence could have been adduced in Reply by the Crown and it is fair that it be put to the accused during his testimony. The Crown gains no advantage, but merely responds to the evidence as it has developed in the case.

Delivered: 22 April, 2022. Justice Joseph F. Kenkel