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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
CITATION: R. v. P.C., 2023 ONCJ 434
DATE: 2023 10 05
COURT FILE No.: Pembroke 21-0843
BETWEEN:
HIS MAJESTY THE KING
— AND —
PC
Before Justice J.R. RICHARDSON
Heard on February 16, 22; March 1; April 24; May 30; July 21, 2023
Reasons for Judgment released on October 5, 2023
Caitlin Downing.................................................................................. counsel for the Crown
Jason Gilbert................................................................................... counsel for the accused
RICHARDSON J.:
Introduction
[1] PC is charged with sexually assaulting HL on August 31, 2020 and again on March 22, 2021.
[2] The Crown has elected to proceed by Indictment. The accused elected trial in this Court.
[3] At the outset of the trial, jurisdiction of the court and identity were admitted.
[4] Prior to the trial, there was a section 276 Application, which was allowed in part on February 22, 2023. Concurrently with these reasons, my reasons on the section 276 Application are released for publication.
[5] The trial commenced with a voir dire with respect to the admissibility of statements that PC was alleged to have made to Constable Holland when he was arrested. The parties agreed that the voir dire would proceed on a blended basis with Constable Holland’s evidence on the trial itself.
[6] On March 1, 2023, I ruled that the statement was admissible for reasons that I would deliver when I delivered judgment. Paragraphs 68 to 89 herein are those reasons.
[7] During the course of the trial, the Crown led evidence of text messaging between the complainant and a friend on two bases: first, the evidence was led in order to rebut the allegations of recent fabrication. I admitted the text messaging for this limited purpose.
[8] Secondly, the evidence was led as part of the “narrative”. I reserved on this issue.
[9] Since this issue is framed as part of the analysis of credibility of HL, my findings in relation to this issue are found at paragraphs 261 to 271.
Constable Brett Holland – Voir Dire in-Chief
[10] Constable Holland has been a member of the Ontario Provincial Police for two and a half years.
[11] On the 18^th^ of June, 2021 at 4:50 pm, he was called to investigate a “mental health and domestic” occurrence at […] J Street in Pembroke. He arrived at 4:58 pm.
[12] On arrival he spoke with HL who related that she was having a verbal argument with her boyfriend, PC. She alleged that during the course of that argument, PC became upset, grabbed a knife and started making comments that he was going to kill himself.
[13] PC was located in the garage of the residence, apprehended under the Mental Health Act and transported to the Pembroke Regional Hospital by other officers.
[14] Constable Holland returned to the residence to speak with HL about the incident.
[15] As is standard practice, he completed a Domestic Violence Questionnaire with her. When asked about sexual offences as part of the Domestic Violence Questionnaire, HL related that there had been incidents of sexual violence in the past.
[16] At this point, Constable Holland decided to terminate the interview with HL in order to have her go to the police station to give an audio-video recorded interview. HL could not attend right away because of child care issues. She did, however, attend the next day.
[17] On June 19, 2021, Constable Holland interviewed HL by audio-video between 11:11 am and 11:57 am. At the conclusion of the interview, he was satisfied that he had grounds to arrest PC for two counts of sexual assault. Constable Holland spoke to his supervisor and decided that he was going to release PC on an undertaking once he was arrested. Constable Holland then completed the undertaking in advance.
[18] At 12:58 pm, Constable Holland drove to the place where PC was employed. He located PC who was working. PC agreed to meet the officer outside when his shift was completed.
[19] The officer testified that on the day in question, he was dressed the same as he appeared before me in court, that is he was dressed in a full OPP uniform replete with all of his use of force equipment. There would be no doubt to anyone that Constable Holland was a police officer. He was driving a “subdued” police vehicle that day, which I took to mean a vehicle that had police markings, but it was not obviously a police vehicle unless one looked closely at it.
[20] Inside PC’s workplace, Constable Holland told PC that he needed to speak with him. The interaction was not longer than 30 seconds.
[21] Constable Holland stated that there were no threats or inducements. PC did not have any difficulty understanding him. PC did not appear intoxicated. Constable Holland could not remember if he asked PC any questions. Constable Holland did not recall how PC responded when he asked to speak with him. He did not note it either. All he could recall is that PC told him that his shift was ending in about 15 minutes and he would meet the officer outside when it was over.
[22] Constable Holland was working alone.
[23] After this discussion, Constable Holland went outside and sat and waited for PC in his police car.
[24] At 1:18 pm, PC came outside. Constable Holland advised PC that he had grounds to arrest PC for two counts of sexual assault. To this PC replied, “You’ve got to be fucking kidding.” This conversation occurred directly beside the hood of Constable Holland’s police car.
[25] The two men were approximately two and a half feet apart when they had this conversation. Constable Holland’s use of force equipment remained holstered.
[26] At 1:20 pm, Constable Holland arrested PC. He searched PC incident to arrest and did not discover anything of note. This was the only force that Constable Holland applied to PC. He did not handcuff PC. He did assist PC in getting in the rear of his police car in order to ensure that PC did not hit his head.
[27] Once PC was in the rear of the police car, at 1:22 pm, Constable Holland read PC his rights to counsel. The officer testified that this was read verbatim from a police-issued card that Constable Holland carries with him. PC did not seem confused. He stated, “I know your stuff”. He did not express a desire to call a lawyer. He indicated that he understood.
[28] Constable Holland then said that he read the accused a caution. When asked if he understood, PC said, “Sure.”
[29] PC asked Constable Holland to explain the charges. Constable Holland stated that he gave PC the dates of the alleged offences, that is August 31, 2020 and March 22, 2021. Constable Holland could not recall if he told PC that the complainant was HL. Constable Holland stated that he did not believe that PC asked for any specifics as to what the alleged offences were.
[30] Constable Holland testified that at this point, PC stated, "She didn't say no multiple times. She said it once and then we just went with it.” Constable Holland testified that he wrote this verbatim in his notebook as soon as PC stated it. He did not believe that he paraphrased what PC said. “It was as accurate as I can remember it”, Constable Holland told me. He noted that the exchange appears in his notebook in quotation marks which is an indication to him that these are the words that PC stated and not his interpretation of what PC was saying.
[31] Constable Holland stated that PC also said, "She's my girlfriend and we have sex. How can I sexually assault my girlfriend?" With respect to this remark, Constable Holland’s evidence was that PC seemed confused and he did not think that he could sexually assault someone who was his girlfriend. Constable Holland indicated that he had to explain this to PC.
[32] Constable Holland could not remember whether there were any other utterances between the first and second utterance. The utterances were all written in his notebook while they were parked outside PC’s workplace.
[33] Constable Holland indicated that PC was upset and he remembered PC hitting the seats in the rear of the police car.
[34] The conversation all took place in the space of about a minute. At 1:24 pm, they left the parking lot of PC’s workplace to go to the police station.
[35] Constable Holland repeated that at no time did he threaten PC or make him any promises. There was no indication that PC did not understand what the officer was saying. To the contrary, Constable Holland testified that PC was engaging him and asking questions about the incidents. Throughout his interaction with PC, including the drive to the police station, PC remained in the rear of the police car but he was not handcuffed.
[36] They arrived at the Pembroke police station at 1:33 pm. PC was lodged at 1:45 pm. PC did not make any other utterances while he was being lodged.
[37] Constable Holland gave PC an opportunity to provide a statement. PC declined; he stated that he could not remember the incidents. He could only remember that they had sex.
[38] Constable Holland served PC with a Form 10 Undertaking at 1:45 pm. He explained the conditions on the undertaking to PC, including a condition that he have no contact with HL. He released PC at 2:42 pm.
Cross-examination on the Voir Dire
[39] In cross-examination, Constable Holland stated that when he first went into PC’s workplace, he spoke with another employee and asked for PC. He also confirmed that he did not contact PC by phone prior to going to his workplace because, due to the severity of the charges, he wanted to advise PC of the charges personally. Constable Holland related that given the nature of the call the previous day, he was concerned that PC would be suicidal. “That’s why I wanted to have face-to-face contact”, he stated. He agreed that he did not consider asking PC to come to the station to speak with him.
[40] Constable Holland agreed that he did not initially advise PC of the nature of the matter that he needed to speak with him about. He could not recall whether PC asked him if he was in any sort of trouble. He could not recall whether PC asked him if he was going to be arrested. Constable Holland denied that he was asked those questions. “That’s not possible”, Constable Holland stated. “I probably would have said something like “we can discuss that outside.””
[41] Constable Holland reiterated that he could not recall the exact questions that PC asked once they were outside in the cruiser. “I think he asked me about dates”, he stated. He stated that he explained the charges and provided the two dates of the allegations. “I don’t recall exactly what I told him”, the officer told me.
[42] Defence counsel asked, “When he asked you about the charges, prior to proceeding to explain them again given the dates and so on, did you say to him, “Let's not get into this now. Let's wait until we get to the detachment?” Constable Holland stated, “That may have been said. I know I was actively engaged in writing. I don’t recall his questions to me if he did pose any or what my answers were”.
[43] Defence counsel asked Constable Holland about his notetaking and suggested that given the way the officer’s notes of the utterances appear, they were two separate utterances and there must have been a break in between them. Constable Holland stated that PC “was just speaking in the back. If there was a break, it was minimal at best.”
[44] Defence counsel suggested that Constable Holland did not note exactly what PC stated in the car. Constable Holland stated “I was trying to capture as much as I could. Is it a complete log of every single thing that he said? No, but I do feel that the comments he made pertaining to this event were captured. Is it possible I missed something? Yes, but I don't think it was significant or long in nature.”
[45] Constable Holland agreed that he could not recall mentioning HL’s name but he thought it was likely that he did.
[46] Defence counsel suggested to Constable Holland that PC was referring to someone other than HL. Constable Holland stated that he was very confident that PC was referring to HL because while driving past J Street, which is the street on which HL lived, PC stated, “That Bitch.” Constable Holland recalled that this was the address where PC was apprehended the previous evening. He was not able to make a note of this utterance because he was driving.
[47] Defence counsel proceeded to ask Constable Holland about his dealings with HL and PC the previous evening. He agreed that when he spoke with HL the previous evening, HL did not report that PC ever attempted to harm her or her family. Her only report was that PC had made threats on his own life. Constable Holland also advised that he knew that PC had been apprehended. He was not told whether PC was admitted to hospital or whether he was assessed and released. He agreed that when he spoke with PC in the garage, PC told him that he didn’t want to live anymore and what his mental health diagnosis was. Constable Holland agreed that he was not aware whether PC had been prescribed any medication as a result of his hospital visit.
[48] Constable Holland testified that when he saw PC the next day, “his behaviour did not cause me concern” and there was “certainly a marked departure from what I saw the night prior.”
[49] With respect to the interaction that occurred at the detachment when the Form 10 was served, defence counsel asked “What if anything would you have asked him to solicit that answer?” Constable Holland responded, “I think I just asked him if he would like to provide a statement.” He stated that this interaction would have taken place at the guard’s desk in the cellblock. The area is video recorded but not audio recorded.
[50] Constable Holland agreed that PC appeared surprised at the allegations. “What I observed was an upset individual”, he stated.
[51] At the conclusion of examination in-chief, cross-examination and re-examination of Constable Holland, I asked some questions about the issue of the caution of PC. In-chief, Constable Holland testified that after he read PC his rights to counsel, he cautioned him. When he asked PC if he understood the caution, PC answered, “Sure”. It was then that the statements came out.
[52] Constable Holland read to me the caution that he read to PC from his notebook: “You are charged with two counts of sexual assault. You are not obliged to say anything unless you wish to do so, but whatever you do say may be given in evidence.”
[53] The officer indicated to me that he did not read the secondary caution. Although I did not ask the officer to read me the language of the secondary caution, I am aware that in the secondary caution, an accused person is advised that anything that the police may have said to the accused previously should not influence them or make them compelled to say anything.
[54] I will return to the importance of this omission later in these reasons.
Crown Submissions Re Voluntariness
[55] The Crown submitted that voluntariness of the statements was proven beyond a reasonable doubt.
[56] The Crown argued that the evidence is clear that PC was possessed of an “operating mind” when the statements were made despite the fact that he had been apprehended under the Mental Health Act, the previous day. The Crown submitted, citing R. v. Whittle 1994 55 (SCC), [1994] 2 S.C.R. 914 that the test for operating mind was a low threshold, requiring only “a limited mental component which requires the accused have sufficient cognitive capacity to understand what he is saying and what is being said.”
[57] The Crown argued that there was no evidence that Constable Holland induced PC, threatened him or made any promises. I agree.
[58] The Crown maintained that there was no atmosphere of oppression. On the contrary, the Crown noted that Constable Holland did not arrest PC inside his workplace, he did not handcuff PC, and the utterances were of short duration. It was not a formal interview. Furthermore, the Crown argued that Constable Holland appropriately had PC’s mental health and his experience the night before in mind when he decided to deal with him face-to-face. I agree that there was no atmosphere of oppression.
[59] The Crown argued that there was no evidence that there was any police trickery. On this point, I also agree.
[60] The Crown submitted that the absence of the secondary caution was not fatal. Citing R. v. Tessier 2022 SCC 35, the Crown argued that, given the absence of the threats, inducements, oppression, lack of an operating mind, or police trickery, the absence of a caution is of no consequence.
[61] Finally, the Crown submitted that there was a sufficient record on which to determine the question of voluntariness. The Crown maintained that issues with the accuracy, completeness and authenticity of the statement go to the weight that should be given to the statement, not its admissibility. The threshold issue of the sufficiency of the record only comes into play if it is impossible to determine whether the accused’s will was overborn. There is no presumption that statements that are not audio or video recorded are involuntary.
Defence Submissions Re Voluntariness
[62] Defence counsel indicated that the sufficiency of the record, is the crux of its argument on voluntariness.
[63] Defence counsel argued that the officer’s failure to remember and/or note the exact nature of the exchange between him and PC was extremely problematic. Defence counsel maintained that “it sounds like” the officer was questioning PC and PC was answering, something that the Constable Holland denied.
[64] With respect to “the bitch comment”, Defence counsel expressed alarm that the officer did not make a note of this in his notebook. He argued that this was a hostile comment with threatening overtones. He thought it was extremely unlikely that the officer did not write it down.
[65] Defence counsel also expressed concern about the lack of a secondary caution, given that PC had dealings with the Police the night before.
[66] Defence counsel argued that it was not certain that PC was in fact speaking about HL. He maintained that the statements were ambiguous given that PC could not remember anything about the dates of the incidents.
Crown Reply Submissions Re Voluntariness
[67] In reply, Crown counsel contended that I can infer that PC was referring to HL when he made the statements, given that the statements arise immediately after Constable Holland explained the dates to him.
Analysis – Voluntariness
[68] At the outset, as I indicated when I summarized the Crown and Defence positions, I agree with the Crown on the issues of lack of inducement, threats or promises, atmosphere of oppression and police trickery. There is no evidence that these factors are present. Defence counsel conceded as much.
The Issue of Operating Mind
[69] In this case, there are two aspects to the issue of whether PC had an operating mind when he spoke with Constable Holland. First, PC was suicidal the night before and was apprehended and taken to hospital. Secondly, Constable Holland did not fully caution PC after reading his rights.
[70] The first issue can be dealt with quickly. The evidence is clear that regardless of what occurred the night before, PC was fully compos mentis when he spoke with Constable Holland the next day. He understood the right to counsel. He declined to call a lawyer. He also understood the caution. He asked the officer a question about the nature of the offence and the officer gave him the dates that the alleged events took place. Later at the station, he declined to give an interview on the basis that he had no memory of the events.
[71] In R. v. Whittle, supra, the accused suffered from schizophrenia. He confessed to murder and other offences after “inner voices” told him to confess. With respect to the operating remind requirement, Justice Sopinka stated:
The operating mind test, which is an aspect of the confessions rule, includes a limited mental component which requires that the accused have sufficient cognitive capacity to understand what he or she is saying and what is said. This includes the ability to understand a caution that the evidence can be used against the accused.
[72] Later in the Judgment, Justice Sopinka noted:
To the extent that the inner voices prompted the appellant to speak in apparent disregard of the advice of his counsel and to his detriment, because he did not care about the consequences or felt that he could not resist the urging of the voices, they cannot be the basis for exclusion. Inner compulsion, due to conscience or otherwise, cannot displace the finding of an operating mind unless, in combination with conduct of a person in authority, a statement is found to be involuntary. As for the Charter rights asserted, once the operating mind test is established, an accused is not exempted from the consequence of his or her actions absent conduct by the police "which effectively and unfairly deprived the suspect of the right . . ." (Hebert, supra, at p. 182).
[73] Despite the fact that nearly thirty years has elapsed since Whittle was decided, the decision remains good law. As recently as 2022, in R. v. Tessier, supra, the Supreme Court of Canada reaffirmed these findings at paragraph 8, noting:
Generally, the operating mind doctrine requires the Crown to show that the accused possessed the limited cognitive ability to understand what they were saying and to comprehend that the statement might be used as evidence in criminal proceedings (R. v. Whittle, 1994 55 (SCC), [1994] 2 S.C.R. 914, at p. 939).
[74] PC had significantly more than a “limited cognitive ability to understand what he was saying and to comprehend that the statement might be used as evidence in criminal proceedings.” Thus, I am satisfied that the Crown has proven beyond a reasonable doubt that the mental health difficulties that PC was suffering from the evening before did not negate the operating mind requirement when he spoke to Constable Holland the next day.
[75] Of greater concern is the absence of the secondary caution. As Justice Kasirer stated in Tessier, supra, at paragraphs 9 to 12:
[9] Drawing on scholarly commentary on the burden of proof relating to the operating mind dimension of voluntariness, I would recognize that the absence of a caution for a suspect constitutes prima facie evidence that they were unfairly denied their choice to speak to the police (see S. N. Lederman, M. K. Fuerst and H. C. Stewart, Sopinka, Lederman & Bryant: The Law of Evidence in Canada (6th ed. 2022), at ¶8.119). In circumstances in which the accused has raised credible evidence that their status at the time of questioning was that of a suspect, the presence or absence of a caution takes on meaningful significance. Where the accused further puts the lack of a caution and their increased legal jeopardy into evidence — by cross‑examining Crown witnesses or otherwise — they have met their evidentiary burden that raises the issue as to whether their statements were freely given. It then falls to the Crown to discharge its persuasive burden by proving either that the accused was not in legal jeopardy, in that they were a mere witness and not a suspect, or that the absence of a caution was without consequence and that the statements were, beyond a reasonable doubt and in view of the context as a whole, voluntary. This would give substance to the recommendation formulated by Charron J. in Singh for trial judges seeking to weigh the importance of a lack of caution.
[10] Beyond merely showing that the person questioned had an operating mind, there may also be circumstances in which the absence of a caution is in point of fact a willful failure by the police to give a caution. This might reflect a deliberate tactic by the police to manipulate the individual into thinking that they are a mere witness and not a suspect so that, in making a statement, their jeopardy is not at risk. Where the failure to caution a suspect amounts to trickery, the effect of the police conduct may have an impact on voluntariness and should be analyzed in that light (see Oickle, at paras. 67 and 91).
[11] As Charron J. observed in Singh on the question of voluntariness, “the focus is on the conduct of the police and its effect on the suspect’s ability to exercise his or her free will” (para. 36). If the Crown cannot prove that the absence of a caution had no impact on voluntariness, the prima facie evidence of involuntariness raised by the absence of a caution will lead to a conclusion of inadmissibility. The absence of a caution weighs heavily because, where unaddressed, it represents prima facie evidence that the suspect has been unfairly denied their choice to speak to the police and that, as a consequence, the statement cannot be considered voluntary. This does not displace the ultimate burden on the Crown to prove voluntariness beyond a reasonable doubt. Rather, it emphasizes the legal significance of the absence of a caution as a potential sign of involuntariness where a person is a suspect.
[12] But to be clear: insisting on a caution in all circumstances where a suspect is questioned by police, or requiring that the Crown prove what amounts to a waiver of that caution, are not conditions of voluntariness. In my respectful view, the Court of Appeal mistakenly imposed this high standard based on proof of actual, subjective knowledge. Where knowledge can be shown, courts have forgiven the lack of caution, but just as the caution is not obligatory, proof of actual knowledge of the right to silence or the consequences of speaking to prove voluntariness is not either. That high standard applied in all cases in the pre‑detention phase of an investigation could upset the balance of individual and social interests upon which the confessions rule rests.
[76] In Tessier, the Supreme Court urged a flexible approach to the issue of the effect that the lack of a caution may have on a statement given to Police. Justice Kasirer explained the approach that should be taken at paragraphs 78 to 83:
[78] I agree with the Attorney General of New Brunswick that the weight to be given to the absence of a caution will fall on a spectrum. At one end, the significance attached to the failure to caution an uninvolved individual — such as the person on the street corner — will typically be negligible. The relative lack of vulnerability of an uninvolved individual or witness who is questioned by police means that a caution will typically be unnecessary to show that the statements were voluntary. To require that police caution every person to whom they address questions in a criminal investigation, even where those questions are asked at a police station, would be — as the Court of Appeal rightly noted here — an unworkable standard. It would unduly limit the broader societal interest in investigating crime by excluding reliable and fairly obtained statements in circumstances that do not warrant it.
[79] At the other end of the spectrum, the vulnerability and legal jeopardy faced by detainees cement the need for a police caution. Fairness commands that they know of their right to counsel and, by extension, of their right to remain silent so that they can make an “informed choice” whether or not to participate in the investigation (I borrow the expression “informed choice” from Singh, at para. 33). The balance courts seek to achieve in applying the confessions rule in this context tilts in favour of protecting the rights of the detained person and of limiting society’s interest in the investigation of crime. The weight attached to the absence of a caution in these circumstances, while not determinative of the question of voluntariness owing to the contextual analysis required, will be at the highest end (see Singh, at para. 33).
[80] In circumstances in between, where police interview a suspect who is not detained and do not provide a caution, I agree with the longstanding view that the lack of caution is not fatal, but that it is an important factor in determining voluntariness (see generally Kaufman, at pp. 142‑46). The importance attached to the absence of a caution will also be significant in recognition of the potential for vulnerability and exploitation of an informational deficit, unless it can be demonstrated in the circumstances, as I will explain in more detail below, that there is no doubt as to its voluntariness. This builds incrementally on Charron J.’s helpful reasons on this point in Singh. The heightened jeopardy and consequential vulnerability faced by a suspect, as opposed to an uninvolved individual, warrants special consideration in the final analysis to ensure adequate and principled protections under the confessions rule. Although encounters between police and citizens sometimes mean the status of a person may change over the course of an interview, investigators are well accustomed to signs that raise their suspicions. This would be the proper moment to caution the interviewee to prevent the potential exclusion of the statement at trial.
[81] The first step in assessing the importance of the absence of a police caution is therefore to identify whether or not the person was a suspect. I would endorse the suggestion of the Attorney General of New Brunswick that fairness considerations may arise where a person is a suspect, and that a suspect test is a useful way of determining whether an accused person may have been unfairly denied their right to silence (see Oland, at para. 42; Smyth, at p. 34, citing Boudreau). This is also consistent with statements from this Court that “the confessions rule applies whenever a person in authority questions a suspect” (Oickle, at para. 30). The test is as proposed by the Attorney General of New Brunswick: whether there were objectively discernable facts known to the interviewing officer at the time of the interview which would lead a reasonably competent investigator to conclude that the interviewee is implicated in the criminal offence being investigated (see Morrison, at para. 50; Oland, at paras. 43‑46; Smyth, at pp. 34‑36; Wong, at para. 64; Merritt, at para. 39; Higham, at paras. 5‑7).
[82] The test is objective, and includes both an assessment of the objectively discernable facts known at the time and the interaction between police and the interviewee. Pointed questions, particularly where they suggest the culpable involvement of the individual being questioned, may indicate that the person is a suspect, but pointed questions may have other legitimate ends, depending on the circumstances. A trial judge is best positioned to determine whether the police were simply seeking to gauge a person’s reaction to certain lines of questioning, or whether the questioning is more consistent with the interrogation of a true suspect. While the fact that the police initiated the interview does not, on its own, indicate that a person is a suspect, it may serve as a sign that a person was a suspect where combined with other indications. That said, questions that provoke anxiety or discomfort or even imply guilt do not necessarily mean a person is a suspect. The nature of the interaction between police and the individual and its connection to the objectively verifiable facts is therefore relevant to the suspect test.
[83] Once a court reaches the conclusion that a person was a suspect, the absence of a police caution is not merely one factor among others to be considered. Rather, it is prima facie evidence of an unfair denial of the choice to speak to police, and courts must explicitly address whether the failure created an unfairness in the circumstances (see Oland, at para. 42). It cannot be washed aside in the sea of other considerations. Instead, it serves to impugn the fairness of the statement and must be addressed, by the Crown, in the constellation of circumstances relevant to whether the accused made a free choice to speak. In discharging its burden to prove beyond a reasonable doubt that a statement was voluntary, the Crown will need to overcome this prima facie evidence of unfairness.
[77] In this case, PC was detained. He was more than a suspect. He was being accused of the crime and arrested for that crime. Following Tessier, therefore, I find that there is prima facie evidence of unfairness here. He is entitled to the highest protection.
[78] A few paragraphs later, at paragraphs 86 to 88, Justice Kasirer provided the following guidance to trial judges with respect to how to determine whether the Crown has, notwithstanding this prima facie evidence of voluntariness, treat statements made in the absence of a caution:
[86] In the course of cross‑examination of police witnesses or upon hearing the accused’s own testimony, it may come to light that the accused was in a situation of heightened vulnerability and risk, either because they were detained or a suspect, and were not given a caution despite being suspected of a crime. That is sufficient to cast doubt on whether the interviewee spoke voluntarily as understood in Whittle and Oickle; that is, that the accused had the ability to understand what was being said and that it may be used in evidence, and that there was no other recognized consideration impugning voluntariness. The accused thus has met their evidentiary burden to make the absence of a caution a “live issue”; in keeping with its persuasive burden, the Crown must then satisfy the trial judge beyond a reasonable doubt that the statement was nevertheless voluntary.
[87] In these circumstances, it is appropriate for the trier of fact to undertake a contextual inquiry to determine whether an unfairness arose that vitiates voluntariness by denying the right to silence. This might arise where there is evidence of police trickery, for example circumstances in which the absence of a caution is the result of a willful failure to give a caution or a deliberate tactic to manipulate the suspect into thinking they have nothing at stake (see, e.g., R. v. Crawford, 1995 138 (SCC), [1995] 1 S.C.R. 858, at para. 25; R. v. Auclair (2004), 2004 24201 (QC CA), 183 C.C.C. (3d) 273 (Que. C.A.), at para. 41; M. (D.), at para. 45; Higham, at para. 22). Impropriety on the part of the police, usually in the form of obscuring the jeopardy faced by the suspect to encourage cooperation, may unfairly deny a suspect their right to silence. Plainly, the statement should be excluded if the police deception shocks the community. But even if it does not rise to that level, deceiving the interviewee into thinking that, as a mere witness, they are in no jeopardy and that their statements will not be used in evidence against them could preclude admissibility at the end of the day. “[T]he ability to make a meaningful choice remains pertinent where trickery is involved”, write Lederman, Fuerst and Stewart, “and exclusion is mandated where there is a reasonable doubt as to the confession’s voluntariness in this regard” (¶8.126). I would note there is a distinction between misleading a person about the extent of their jeopardy and declining to inform a person that they are a suspect. Police need not provide details about the status of their investigation provided the salient information is communicated and there are no strategies of deception (R. v. Campbell, 2018 ONCA 837, 366 C.C.C. (3d) 346, at paras. 8‑9).
[88] While not necessary for the Crown to demonstrate, proof that the accused was in fact subjectively aware of their right to silence or aware of the consequences of speaking will be powerful evidence that the absence of a caution did not undermine voluntariness. In such an instance, doubts as to fairness that could result from the absence of a caution plainly do not arise because the suspect has the information necessary to choose whether to speak or remain silent. For example, in the cases of Pepping, R. v. Boothe, 2016 ONCA 987, and R. v. Blackmore, 2017 BCSC 2682, cited by the Court of Appeal, the statements were held to be voluntary despite the absence of a caution. In each of these cases, the court was satisfied that the suspect was aware of the consequences of speaking. Stated non‑exhaustively, indications that a suspect may be aware of the right to silence or the consequences of speaking include awareness of being recorded (R. v. Leblanc (2001), 2001 12528 (QC CA), 162 C.C.C. (3d) 74 (Que. C.A.), at para.17), indications that the suspect is directing conversation (Boothe, at para. 20), awareness of what the police are investigating and the suspect’s alleged role in the investigation (M. (D.), at para. 45; Leblanc, at para. 26), and exercising the right to silence by declining to answer police questions (M. (D.), at para. 46). I would underscore that these cases do not stand for the proposition that the Crown must prove beyond a reasonable doubt subjective knowledge of the right to silence or that the proof of knowledge displaces the settled test for an operating mind. Rather, they indicate that where there is evidence that the accused was aware of their right to silence or of the consequences of speaking, the weight attached to the absence of a caution becomes less important because there are other strong indications of voluntariness. An eagerness to talk, as in the case of Pepping (at para. 6), may or may not serve as evidence of voluntariness, depending on the circumstances. A person may appear eager to talk as a result of either a genuine interest in doing so or through a feeling of fear and compulsion.
[79] The Supreme Court revisited voluntariness later in 2022 in R. v. Beaver 2022 SCC 54 and Justice Jamal, writing for the majority, upheld Justice Kasirer’s decision.
[80] The Court of Appeal recently considered this issue again in R. v. Groves 2023 ONCA 211. Groves was charged with murder. During the trial, while in the holding cell, the accused told a Special Constable that she wanted to kill the deceased but she did not think it would happen. She stated that she stabbed the deceased and she panicked and watched him die. There was video of the conversation but no audio. The accused could be observed demonstrating to the officer how she stabbed the deceased. The Special Constable was not taking notes. She reduced the conversation to writing later. The accused testified on the voir dire and stated that she knew that she was speaking with a person in authority and that what she was saying would be conveyed to Crown counsel.
[81] The trial judge admitted the statement. Writing for himself and Justices Tulloch (as he then was) and Lauwers, Justice Coroza found at paragraphs 33 to 37:
[33] First, the appellant submits that to have the capacity for an operating mind, the accused must possess a sufficient degree of cognitive ability to understand what he or she is saying and to comprehend that the evidence may be used in proceedings against the accused. The appellant argues that the evidence before the trial judge was that the appellant became aware of the circumstances of her jeopardy at “some point” in the conversation but was not aware of the implications of her utterances at the outset. The appellant argues that, based on the video, the incriminating statement was blurted out a full minute before the appellant had a contemporaneous awareness of what was at stake. According to the appellant, she did not, until that point, appreciate that everything she was saying to Cst. Higley would be communicated to Crown counsel. The appellant submits that the trial judge should have recognized this.
[34] I reject this submission. The test for an operating mind requires proof that the accused was capable of making a meaningful choice to speak and that choice was not improperly influenced by state action: Tessier, at para. 51. In my view, the trial judge’s ruling is fully supported by the evidence and I see no misapprehension of that evidence. Before making the statement, the appellant knew that she was speaking to a person in authority. Cst. Higley was in uniform. Indeed, Cst. Higley had spoken with appellant on multiple occasions, and the two had even communicated before the 2016 trial proceedings because of the appellant’s previous involvement in the justice system. The appellant was fully aware that Cst. Higley might pass on her remarks to the Crown and that her conversation would eventually be before the court. In short, on the day in question, the appellant spoke to Cst. Higley because she felt remorseful about Mr. MacKenzie’s death and wanted Cst. Higley to convey that remorse to Mr. MacKenzie’s family and Crown counsel in the hope that it might help her.
[35] Second, the appellant argues that the trial judge effectively ignored the circumstances of the interaction between Cst. Higley and the appellant. The appellant was emotionally distraught and had a cognitive impairment. She was interacting with someone with whom she believed she had a friendly relationship, someone with whom she had to interact with to get her basic needs met. She argues that there was nothing in the conversation with Cst. Higley that would have indicated what was at stake for her in making the disclosure. The conversation between Cst. Higley and the appellant was not an interview, Cst. Higley was not taking notes. Nor did she caution the appellant, which, while not dispositive, raises a reasonable doubt as to whether the appellant had an operating mind.
[36] I do not accept this submission. The trial judge found that, despite the appellant’s emotional upset, she had an operating mind. Nor did the trial judge err in finding that, despite her cognitive impairment, the appellant knew that if she spoke to a person in authority anything she might say might be used against her. The trial judge referred to the evidence that when the appellant was interviewed on July 30, 2012, by another police officer in relation to the case, she cut short the caution that was being provided to her at that time and advised that she was aware she was being questioned by the police and understood that anything she might say could be used against her. The trial judge found that the absence of a caution given by Cst. Higley was not fatal to the admissibility of the appellant’s statement. The absence of a caution is not determinative of voluntariness: Tessier, at para. 72. Instead, proof that an accused was subjectively aware of the consequences of speaking is powerful evidence that the absence of a caution did not undermine voluntariness. This is because the accused has the information necessary to choose whether to speak or remain silent: Tessier, at para. 88. On the appellant’s own evidence, she knew who she was talking to and the consequences of her speech. In these circumstances, the trial judge properly found that the absence of a caution was not determinative of the voluntariness of the appellant’s statement.
[37] I see no basis to interfere with the trial judge’s conclusion that the appellant’s statement to Cst. Higley was voluntary and would defer.
[82] After reviewing these authorities and instructing myself on the appropriate principles, I am satisfied that PC was possessed of an operating mind when he gave his statement. I am also satisfied that, notwithstanding the fact that PC was not fully cautioned, which at law renders his statement prima facie involuntary, the Crown has proven that the lack of the caution is of no consequence. I make this finding given the following constellation of facts:
a) PC was in a much better frame of mind when Constable Holland met with PC on June 19 than he was the night before. PC had recent contact with the police. Although he did not initially understand the nature of Constable Holland’s visit, he must have understood what their role was. He had been detained under the Mental Health Act 18 hours previously.
b) PC knew that he was dealing with the police. Constable Holland was dressed in full uniform. He was operating a police car.
c) PC knew that he was under arrest and detained. He knew that the offence that he was going to be charged with sexual assault.
d) PC was made aware of his right to counsel. He dismissed the right to counsel by stating that he knew Constable Holland’s “stuff” and he declined to speak to counsel. He fully understood what was happening.
e) Constable Holland was not interviewing PC. He was trying to go through the process of arresting him which included the reading of his right to counsel, the caution and the secondary caution.
f) PC began directing the conversation with Constable Holland. He asked Constable Holland to explain the charges. In answer to this question, Constable Holland gave him the dates of the allegations.
g) At this point, PC blurted out the first and second statements.
h) There is nothing about Constable Holland’s behaviour toward PC that was oppressive. He was not interviewed for hours. The statements were made spontaneously by PC within two minutes of being arrested. Although he was detained in the back of a police vehicle, PC was not even handcuffed. Constable Holland did not use any tricks to elicit a statement.
i) With respect to the secondary caution, it is clear that the normal arrest procedure, which would have included the secondary caution, was interrupted by PC asking questions. Constable Holland did not initiate any interview with PC. He tried to answer PC’s questions. The conversation clearly took place before Constable Holland could get to the point of completely cautioning PC. In this way, the lack of the secondary caution is of no consequence.
j) This is not a case where there is the complete absence of any caution. Constable Holland read PC the primary caution – which warned PC that he was not obligated to say anything and anything that he did say would be taken down and given in evidence. To this PC responded that he understood. He answered “sure”. Only the secondary caution was omitted.
k) Later, at the police station, PC declined to give a statement and he told the officer that he had no memory of the incidents.
The Issue of Whether There is a Sufficient Record of the Statements
[83] In R. v. Learning 2010 ONSC 3816, Justice Code summarized the state of the case law on the issue of whether the police record was sufficient. He stated at paragraphs 62 to 65 that:
[62] Accordingly, the current state of the law is that the accuracy and completeness of the record of a voluntary statement is an issue of weight that is determined at trial. However, the accuracy and completeness of the record of the circumstances surrounding the making of the statement can relate to proof of voluntariness on the voir dire. This is not an easy distinction to apply, especially in a case like the one at bar where no evidence is called by the defence on the voir dire. It may be unclear in such a case whether the defence is raising issues of voluntariness or issues of accuracy.
[63] As already noted, there is no suggestion in the evidence on the voir dire in this case of any inducement or any oppression such that the will of the accused was overborne by the conduct of the police. See: R. v. Oickle (2000), 2000 SCC 38, 147 C.C.C. (3d) 321 (S.C.C.). The accused had only been under arrest for a short time and he had been in the custody of the two uniformed arresting officers throughout. I am satisfied that they treated him appropriately at all times. In addition, he was treated respectfully by the booking officer and was clearly in a light-hearted mood, given his tape-recorded banter to the effect that “life is good”. Sgt. Schoch’s subsequent encounter with the accused was brief and nothing in the evidence suggests oppression or an overbearing of the will during the few minutes that Sgt. Schoch was in the interview room with the accused.
[64] I am satisfied that the real issue raised by the defence on the voir dire concerns the accuracy and completeness of Sgt. Schoch’s notes of the actual statement made by the accused and any questions put to him by Sgt. Schoch. In other words, it is the same issue as in Lapointe. In Moore-McFarlane, by way of contrast, there were live issues of voluntariness raised by the evidence called on the voir dire and the completeness or incompleteness of the record related to those issues.
[65] I am therefore satisfied that the Crown has proved the voluntariness of the statement at common law. However, the unreliability of Sgt. Schoch’s record of the statement will become an important issue that I will address further in relation to s.24(2) of the Charter.
[84] Learning has subsequently been cited with approval: see R. v. Flanagan 2015 ONSC 2513; R. v. Hansa 2018 ONSC 2943. Additionally, while not specifically relying on Learning, the Court of Appeal has endorsed these principles in R. v. Fernandes 2016 ONCA 772 at paragraphs 39 to 42.
[85] I am satisfied that the completeness of the record does not detract from the voluntariness of the statements that PC gave to Constable Holland.
[86] Constable Holland stated that the first two statements were made while PC was in the rear of his police car right after he was arrested and given his rights to counsel. The officer had his notebook out and was trying his best to note verbatim what PC was stating. As I have already explained, this was not a formal interview. I find that Constable Holland was not asking questions. He was trying to explain the process and PC’s statements were spontaneous utterances to what he was hearing. Constable Holland did his best to write down exactly what PC stated and he used quotation marks in his notebook which was, generally, a shorthand way of stating that those were PC’s exact words. Thus, to the limited extent that the completeness of the record can have a bearing on the issue of voluntariness, I find that the statements are voluntary.
[87] With respect to the weight that I will give the statements, Constable Holland wrote PC’s responses in his notebook in quotation marks. I find that there is nothing about the statements that makes them less probative on the basis of the completeness of the record. As I indicated, this was not a formal interview situation; Constable Holland was trying to go through his routine of arrest and rights to counsel when the statements were made.
[88] The exception to this is the utterance “That Bitch” as they passed J Street, which is the street on which HL lived. It is not something that Constable Holland noted until he testified in Court.
[89] Furthermore, this utterance does not help me decide anything about the case. All it does is demonstrate animus towards the complainant given that the PC just found out that he was being charged with sexual assault against HL. That statement will not be admitted. It is not probative.
The Balance of the Evidence on the Trial
Constable Holland
[90] The parties agreed that Constable Holland’s evidence on the voir dire would apply to the trial and the Crown did not recall him in-chief.
[91] Defence counsel continued to cross-examine the officer after the voir dire.
[92] Constable Holland agreed that HL came into the police station the next day and gave an audio-video statement.
[93] She also gave the officer some text messages which she sent to a friend (AN) after the two sexual assault incidents. Constable Holland could not recall when HL gave him those text messages. He believed that HL emailed the text messages to him and he printed them out for disclosure. He agreed that the police did not forensically examine HL’s phone.
[94] Constable Holland agreed that he had a two minute conversation with AN on June 21 to ask her if she had received the text messages. AN confirmed that she had seen them.
[95] He testified that once PC was released on conditions, he told her that PC was not to have any communication with her. He also agreed that he would have told HL not to have any communication with PC. Constable Holland believed that he had this discussion with HL in person because at the same time, he gave her the key to her house which he had received from PC.
[96] Since June 2021, he has had one other dealing with HL which related to PC. He advised that four months ago (which I took to be in December 2022), HL reported that there may have been a breach of PC’s conditions. Constable Holland indicated that HL was not prepared to give him a statement in relation to that potential breach because she was pre-occupied with other aspects of her personal life.
[97] In re-examination, Constable Holland indicated that did not take a statement from AN because she stated that the entirety of the conversation was captured in the text messages that were provided.
HL
[98] HL testified in person in the courtroom.
[99] She indicated that PC was her former partner. They met about eight years ago through a mutual friend. They started a relationship in 2016. She explained that initially they were “just friends”. They stayed connected on Facebook. In January 2016, they started chatting more. By May 2016 they were dating. They were never married or engaged.
[100] The have one child together, P, who is five years old. HL had two older children from her first marriage, C and K. She stated that she has an eight-month-old at home that she has had with her new partner and she was pregnant with another child when she testified. Her “new” relationship is with YD. It commenced in August of 2021.
[101] When the police became involved on June 19, 2021, they were living together but they were not in a relationship. She estimated that it had ended “months prior”. She stated that they continued to reside together after the end of the relationship because she “felt bad”. She knew that PC did not have any close family and he had nowhere to go. “I was keeping him out of pity. We had a daughter together and I did not want to see him out on the street.”, she told me. She explained that the house where they lived was her home. It had been left to her by her mother in 2015.
[102] She stated that before June 2021, she had “kicked him out before and he came back as I thought we would try again. I classify him as a frequent flyer as he would come and go and come and go.”, she said. She explained that “my emotional side took over and we decided to try again.” She reckoned that she tried to make it work for between one and two weeks.
[103] When asked who ended the relationship, HL indicated that it was “more of a mutual thing.” She explained that they were both “exhausted” and it was clear that the relationship was over. She stated that as much as they both wanted the relationship to end, neither of them wanted finality and they “kind of just drifted apart.”
[104] She stated that they often had discussions about PC moving out. He was angry when this came up. He would yell and throw things.
[105] HL recalled that on June 18, 2021, she called the police because she and PC got into an argument. He pulled out a knife. He was very angry and was threatening to take his own life. She had children at home. He tried to give HL the knife and told her to kill him. He then took off. She called the police and they arrived within about three minutes.
[106] The police asked her why PC was in that frame of mind and what she wanted to see going forward. They did not initially talk about any sexual assault. This came up because the officer had a card that he removed from his pocket and he started asking her questions from the card. One of the questions related to sexual assault and HL indicated that it had occurred. The officer then asked her to go to the office to have a conversation. She did not recall who the officer was. She did not think that she was going to discuss sexual assault when the police came.
[107] HL has now married. She started seeing YD on June 5, 2021. They had been friends for 17 years. It was platonic.
HL’s Account of the August 31, 2020 Incident
[108] HL related that on August 31, 2020, it was pretty late. She was doing her “mom duties” at night after her children had gone to sleep. She was exhausted. “I remember crawling into bed”, she said. She hoped that PC would be sleeping.
[109] She believes that she was positioned on her stomach because that is how she normally sleeps. She does not know how PC was originally positioned but he slept on the right side of the bed.
[110] She recalled that PC got up when she came to the bed. She thought that he was going to leave the bedroom or go the bathroom. A few minutes later she felt a chill. PC had removed the blankets from her legs.
[111] When PC returned to the bed, he was standing on her left-hand side in the middle of the bed in the area of her belly. PC told her to roll over. He was trying to touch her and was positioned so that he was leaning over her. He was trying to take off her underwear. He was only using one hand but she could not remember which hand it was. He was ultimately successful in removing her underwear. She was saying “no” throughout. She was trying to grab the blanket. She told him she wanted to go to bed. He was keeping her from grabbing the blanket.
[112] “He had whipped out his genitals”, she said. She rolled over halfway to communicate with him. She told him that she was not in the mood for anything sexual. He told her repeatedly to roll over. He then rolled her over himself and climbed on top of her. He was still standing on the floor and she was lying on her stomach. He was standing in between her legs. She recalled that their bed had a hard headboard and she had no room. She stated that she did not want anal sex and asked if they could just have vaginal sex. He said, “No, I want to put it in your ass”.
[113] She could hear him rummaging through things. She was trying to move her legs to get away from him but she was so exhausted she had no strength. At one point he had a bottle of lube.
[114] She remembered that he got a little closer to her. She felt cold, wet and slimy which she attributed to the lube. He started putting his penis between her butt cheeks. She told him that if he wanted sex, that was fine, but she was not into anal. “All I want is your ass”, he said. He penetrated her anally. At one point she asked him to “back off and let it go”. He said “I promise I will go slow”.
[115] He announced “Oh, I’m done”. He got up and left the bedroom. “He ended up finishing and walking away like nothing happened”, she said. She went downstairs. She remained downstairs for a good half an hour. She remembered that she was bleeding from her anal area. When she went back upstairs to the bedroom, PC was snoring.
[116] What happened was never discussed again.
[117] She was sore for a day after. She described the bleeding as “surface blood, nothing major”. She did not seek medical attention.
[118] When Crown counsel asked HL if she consented, she said no. She said that she froze. She did not respond or move. She likened herself to a dead body.
[119] She cried from the moment he penetrated her. She remembered tears coming down her face. She did not think that he would have been aware that she was crying. “I figured the less quiet I was and the lesser I moved, the quicker it would be over”, she said.
[120] A couple of days later, she told her best friend, AN about what happened by text through Facebook Messenger.
HL’s Account of the March 22, 2021 Incident
[121] HL said that the March 22, 2021 incident was “kinda the same idea”. It was late. She crawled into bed. She was laying on her stomach. She felt the back of PC’s hand go from her butt to her legs. He was caressing her bum cheeks. She popped her head up and said “No sex tonight”. She said that “sex was not an option for the night.”
[122] He initiated trying to have sex and she told him “no” a few times. She was wearing pajama pants which he removed.
[123] He climbed on top of her so that he was sitting on her upper thighs. He started putting his hands between her legs to touch her vagina. “He was trying to finger me. I don’t know if he was trying to turn me on.” She kept her legs together so that he could remove his fingers. Nonetheless, he was successful in digitally penetrating her.
[124] He asked her if she wanted to “do anal”. She said, “No”. She said, “If you want to have vaginal, just get it over with.” She added, “but I was not in the mood for anything.”
[125] There was no lube this time. He went from her vagina to her anal area and back and forth a bit. He was not successful in penetrating her anally but he tried a number of times. They ultimately had sex vaginally. “I didn’t consent to anything” she said.
[126] At one point she told him that she could not breathe because her head was on the pillow. She managed to get up from the bed and go to the sink to get a drink. She explained that there was a sink in the corner of the bedroom.
[127] PC followed her.
[128] She reached down to try to grab another pair of her pajamas which was located in a laundry basket beside the sink. Her face had been in the sink because she was using her hand to cup water to take a drink. He pushed her over and tried to get into her anal area again. She managed to wiggle away so he couldn’t. He had one hand on her hip and one hand on her back. He was applying force but it was “not a great amount”.
[129] She said “no”. She described her tone of voice as “frustrated”. She said she spoke loudly enough that he would have been able to hear him.
[130] At this point he had managed to get her back over to the bed. He got into her vagina again and she yelled, “I have to pee.” She got to the end of the bed. She managed to get one leg into her pajamas.
[131] She went downstairs and he did not follow her. She waited downstairs until she heard the bed squeak. When she returned up to the bedroom, he was sleeping.
[132] The next morning she told him that she was upset about it. He said, “I don’t know what the big deal is. I didn’t actually get it in your ass.”
[133] Crown counsel asked HL why she told PC that they could have sex vaginally if wasn’t consenting. HL replied, “Because I knew what was going to happen. It was an option for him instead of hurting me.”
The Text Messaging Between HL and AN
[134] HL recognized the text messages between her and AN that were ultimately made Exhibit 1.
[135] HL said that AN was the only person she confided with about these incidents. The text messages in relation to the August 31, 2020 incident state (pages 5 through 9 of Exhibit 1):
September 20, 2020
HL: Hey. Can I ask you something?
AN: ?
HL: If you didn’t want sex, and said no and nick kept going, would that make you mad?
AN: Of course. That’s forced sex. Aka rape.
HL: Ok, I just needed to hear that, thank you.
AN: You ok?
HL: I’ve been avoiding to tell you something, but the subject came up while I was talking to his aunt tonight and I don’t know what to think.
AN: Well I’m here if you need to talk.
HL: I don’t think I should lol. But thank you.
AN: Oh ok, ill respect your choice. Either way I’m here
HL: I know. Just scared is all.
AN: Didn[p] rape you? You don’t have to answer. But now I’m worried Just remember no means, no. Not matter who it’s with. *no
HL: Will you proimise not to say anything.
AN: Ofcourse
HL: So on August the 31^st^ I wanted to go to bed. I remember my eyes burning so bad and being so exhausted from not sleeping much. I was sober too I might add. I add crawled into bed and he left the bed, I figured he was going to pee. At this point pint I feel my body just sinking into the mattress…Zzz, then I feel the Blankets begins me moving. I lift my head and he’s standing over me. I’m like what are you doing. He’s like roll over. I’m like what? He’s like roll over and whips out his dick. I’m like no [p] I’m too tired. So he rips the blaketts off and pulls down my Jammie’s and attempts to roll me over. I’m like seriously I’m cold and tired, I’m not in the mood tonight. The he legit pushes me to my stomach and gets on top. All he wanted was my ass. I’m just pleas no if sex is what you want, no ass. He’s like no I want to fuck your ass. I said no, and he tried to move and grab my pjs and he pushed me down and had found my hole. His first push wasn’t all that gentle and I started saying ow. He’s like well I used lube, just stop moving and I’ll go slow. I’m like back up it hurts and he’s like here and squirts more lube. I’m bawling at this point and I feel numb. I can’t move. My body froze and then he’s like can I pick up the pace….I don’t remember saying anything and then He just bangs it to town and cums inside me. He got up and said nothing. I got up, wiped my tears away and went downstairs to use the bathroom. Still in shock I come back to bed and say nothing….we haven’t talked about it since.
AN: I’m so sorry
September 7, 2020 9:22 pm
AN: You think you’ll talk to him about it.
HL: No. I won’t because I know he won’t see it as him doing anything wrong.
March 23 2:15 pm
HL: So I wasn’t going to say anything…but I need to tell someone It’s eating at me so bad I’m a mess My whole days been awful. I’m so moody. I’m so tired. I’m so torn (emotionally) and I’m sore.
AN: ? What’s going on
HL: So after doing laundry, dishes and having a shower I went to bed. It was around 10:30/11 and I probably was sleeping before I hit the bed... [P] has one to bed at 8 so I knew it was going to be drama free. I so I thought… I just feel my body sink into the sheets and then a whole bunch of [unintelligible] Pat had rolled into me. I could feel him putting his hands on my as. [area of text messages redacted] Anyways I was too tired to fight him and figured he was JUST putting his hand there and whatever. It’s no secret that I still love sex, I just don’t want it from him. I was wet but I dind’t want to be. It was so confusing I wish I could describe it. He started fingering me and I’m like go to bed [p], I’m too tired. He then takes my underwear off and gets on top-ish from behind. He was so rough. He wouldn’t stop. I tired to giggle away and he’d move forward. Kept plunging away. My neck was bent and I was completely into the headboard. He was hurting me and I’m legit crying into my pillow at this point. Then he tries to stick it in my ass. I’m not horny enough for that and I’m already starting to get dry. I never dry [unintelligible] I’m just so MULTIPLE times. I finally was able to get a leg out but he grabbed it and swung it back. I know he can’t hear me crying but I am. He was fighting me. He was determined to get it in my ass. I finally got myself free when I said “ok, just one second”….I escaped to the sink to get a drink. I couldn’t breath. He follows me and pins me to the sink to continue….I grabbed my underwear and started putting them on. Now, I’m over the bed and he’s jumping the shit out of me. I’m sore now. I’m dry. He won’t stop. Now I’m full on sobbing…I though fuck this. Yelled I need to go pee and managed to go downstairs. I have it 30ish minutes and then went back up and crawled to bed. I cried myself to sleep. He heard me and his only response to me was “I didn’t actually get it in your ass so what’s the matter”
AN: If you infact said no. he raped you and you need to report it. This is the 2^nd^ time.
HL: The justice system is fucked up. No one listens to me about my kids, what makes this different. I’ll just add it to my other list of broken things in my life…. I told you, I feel better.
AN: How about calling the mccan house[^1]? Clearly things are not livable anymore. Tell him in writing he has 14 days to move out. And no more bed sharing Include how he raped you in the message
HL: I see them on Thursday
Cross-Examination
[136] One of the theories of the defence was that HL started her relationship with YD as early as January 2021 and that she fabricated these allegations in order to have PC removed from her home by the police so that she could take up with YD. The opening questions in cross-examination commenced with this theme.
[137] Earlier in-chief, HL told Crown counsel that she did not tell YD about her living arrangements with PC when she and YD started communicating in January 2021. Defence counsel suggested that the real reason that she did not disclose her living arrangements with PC to YD was because she and YD had actually started dating. “We were just friends and my living arrangements were nobody’s business”, HL stated.
[138] Defence counsel then asked HL about the interview that she gave the police. In that interview, she told the police that during the August 31 incident, she had vaginal sex with PC prior to the anal intercourse. When this was put to her, HL responded, “I don’t remember if I said that. It is possible.” Defence counsel probed further, asking, “Why would it be possible that you said in your testimony here that there was no vaginal sex on August 31?” HL replied, “I don’t have an answer for that.”
[139] When the portion of her interview with the police was played in court, it was clear that HL did tell the police that there had been vaginal intercourse during the August incident. HL then responded, “I know that there was vaginal sex but it was not consensual vaginal sex.”
[140] “I just went with it so it was over. I never said “no” to the vaginal but I also did not say yes.”, HL added.
[141] HL agreed with the defence counsel’s suggestion that non-consensual vaginal intercourse was a “pretty important detail to leave out” of her statement to the police. “Possibly”, she said. Defence counsel then suggested that it was possible that it “didn’t happen.” “It wasn’t something I remembered”, HL stated.
[142] Defence counsel then asked HL about the issue of lubrication. In-chief, HL’s evidence with respect to the August incident is that PC used lubrication. In her statement to the police, HL stated that PC was “unlubricated.” HL answered “At the time I spoke with Constable Holland, I felt that if I were to disclose that lubrication was used that it would not have been a sexual assault. I was not comfortable telling Constable Holland about the lubrication. To this defence counsel countered, “you not only did not disclose it, but you told Constable Holland that you went in unlubricated?” HL agreed.
[143] Defence counsel suggested that by characterizing the encounter as “unlubricated” it sounded more painful and more brutal. HL disagreed. “I still feel the same. Just because they use lubrication does not make it any better. I didn’t disclose something because I was afraid.”
[144] Defence counsel suggested that if HL believed that if she disclosed lubrication, Cst. Holland would not have seen it as a sexual assault. HL agreed. Defence counsel then asked, “Why did you feel differently when you gave your testimony?” HL stated, “I was more comfortable. I knew it was not something I could keep out.”
[145] Defence counsel continued, “The reason that there are these differences is because these events did not happen?” “That is incorrect.”, HL stated. “This is a fabrication?, asked defence counsel. “That would be wrong.”, HL replied.
[146] Defence counsel then put to HL another difference between her evidence in-chief and her statement to the police. In court, HL testified that the vaginal penetration was momentary. PC realized that he was penetrating her vaginally and he removed himself and penetrated her anally. In her statement, HL told the police that the vaginal penetration lasted three minutes.
[147] When she was asked to explain this difference, HL said, “He didn’t immediately get it in. Three minutes might have been a little far off. I thought for a bit to get him off. In that moment I was not telling time as to how long it took to get in. Three minutes felt like a long time.”
[148] It was clear that when HL gave her statement to the police, she told the officer that the vaginal intercourse was consensual. In-chief, she agreed that she did not say either yes or no.
[149] Defence counsel asked, “If the reason why you told Cst. Holland that PC was unlubricated was to drive the point home that this was a sexual assault, why would you have described the vaginal intercourse as consensual?” HL replied, “When you are in a moment where you know what is about to happen, time stops and you don't think about anything else in that moment. When I am describing what is going on I am trying not to feel like I am not the worst person in the world. I don't want to feel like some sick victim. Would he have believed me if I would have said that it was a quick in and out or if there was lubrication. There are so many things going through your mind when you tell someone you have been raped.” At this point HL became upset and had to leave the courtroom to regain her composure.
[150] Defence counsel asked HL why she told AN about the lubricant. HL indicated that she was comfortable describing this with AN. Defence counsel then asked HL why she did not describe the vaginal intercourse to AN. HL stated, “I did not deem it as relevant.”
[151] She did not see any significance at all to the different versions. She agreed that what she described in court was the way that it took place.
[152] HL agreed that she didn’t describe “a vaginal in and out” in her testimony in-chief. She could not remember why she did not describe it. She said, “At the time, I never thought of it.”.
[153] HL agreed that when she spoke to the police at the police station, her statement was under oath. She stated that she believed that this was a different scenario from when a person appears in court. She stated that although the oath was the same, it was “different” from being “in an unstable mind in a police station” to “being before a judge and delivering your information.”
[154] Defence counsel suggested to HL that she perjured herself when she spoke with the police. HL disagreed. “Oh, I would not call it perjuring. I left information out but I did not lie about specific details.” HL then agreed with defence counsel’s suggestion that she told the police that there was no lubrication when in fact there was.
[155] Defence counsel also reminded HL that in her evidence in-chief she left out the detail of the vaginal interaction during the August 31 incident. “It didn’t come to mind. I forgot to bring it up.”, HL stated.
[156] Defence counsel suggested to HL that the reason she felt the need to take liberties with certain details insofar as to how the incidents happened was to persuade the police even more that they were not consensual. “That’s incorrect”, HL stated, “I didn’t think he would believe me. It was just information that I was uncomfortable sharing, not because I wanted to make it look worse. At that point it is already bad.”
[157] Defence counsel continued, “Another reason is because you were unable to keep your story straight?” HL replied, “I am also human.”
[158] With respect to the March incident, HL agreed with the suggestion that there was vaginal sex initially, then there was anal sex and then there was more vaginal sex after the anal sex. She agreed that the anal sex and the second episode of vaginal sex was not consensual. She disagreed that the first episode of vaginal sex was consensual. “I didn’t say yes or no.”, she said. “I had said “no” from the very beginning”, she added. She agreed that PC was not successful in penetrating her anally during the March incident. Her reference in the text messages to PC “plunging away” was a reference to one of the instances of vaginal sex.
[159] Defence counsel then played part of HL’s interview with the police where she stated that the vaginal intercourse was consensual. As the Crown pointed out when they objected to the part of the interview that was being played and asked that other parts be played “for context”, it was clear that she did not initially consent.
[160] I agree with the Crown. In the statement, she told the officer that PC asked, “Do you want to have a sex?” She told him, “No, I'm really tired.” She then told the officer, “I thought he was going to give up. He started kissing my neck. I was like whatever. Then we had vaginal sex and he tried to stick it in my anal again. I had just finished my menstrual cycle so now I feel uncomfortable I started panicking like have an anxiety attack. I remembered August. I got worked up.” PC stated, “No no no this won't take long. I promise I will be really gentle.” She went on, “He didn't actually penetrate my bum. I was very sore. He was very rough during sex after wards. He started penetrating my vagina after following me to the sink. I said “[P] I'm really sore.”
[161] Defence counsel asked HL why she felt she had to “stretch the truth” or “alter certain facts to seem more believable” when she went to the police station. HL replied, “It is embarrassing walking into a police station to tell someone about two incidents that should never have happened. I gave what I thought was relevant and important to show as to how I felt at that specific moment. I gave what I was comfortable giving at the time, speaking with a male officer.” She did not ask to be interviewed by a female officer. “I did not know that was an option.” She clarified that she was not uncomfortable speaking to a male officer per se but she was uncomfortable describing certain things.
[162] Defence suggested that HL did not seem uncomfortable during her police interview. “I was very uncomfortable”, she retorted.
[163] With respect to injuries, HL agreed that she did not seek medical attention for the bleeding in August. “It was not a substantial amount. I didn't feel my body was in danger or that I needed to seek medical help.”, she stated. With respect to the March incident, she agreed that she bled vaginally for about three days after the incident.
[164] HL agreed that there has been contact between her and PC since June 18, 2021 because they have a daughter together, P, who is aged five. Other than that, there have been text messages between them where they have been “fighting over stuff”.
[165] HL stated that there was no formal custody order in place. She agreed that PC had not seen P since Christmas. She disagreed that her motivation in having PC charged with these offences had anything to do with taking PC out of P’s life and allowing her new partner to take his place.
[166] With respect to the June 18 incident, HL recalled that PC returned to her home about two and a half hours after the police took him away. There was a woman with him in the vehicle who claimed that she was from the mental health part of the hospital.
[167] HL also agreed that she told Constable Holland that she did not want PC returning to the residence. She stated that she was “tired of going through this drunk process over and over. Having a knife was way too far for me.” She stated that she “felt unsafe” with him returning back.
[168] She agreed that when PC returned, YD was there. He had texted her while she was “in the process of dealing with the arrest.” She called him when everything was calm. He asked to come by and drop off some home-made maple syrup. He did not stay over. He did not move in with her until August of that year.
[169] Defence counsel suggested that after the incident HL and PC exchanged sociable or pleasant text messages. “Some were civil”, she said. Defence counsel then asked if the text messages were “playful”. Given my previous ruling with respect to the section 276 application, I instructed HL not to answer that question.
[170] We then took a recess and defence counsel asked to reopen the section 276 application which I denied on the same basis that I denied it at first instance.
Re-Examination
[171] Crown counsel confirmed with HL that she did not tell AN about the vaginal penetration with respect to the August 31 incident. She also confirmed that she did not tell me about that when she initially testified. She also confirmed that when she gave her statement to the police, however, she stated that she did disclose the vaginal penetration.
[172] When asked to explain why, HL stated, “Because it was relevant at the time.” Crown counsel asked, “Here today, do you have an actual memory?” HL stated, “I remember the “oops” but I don’t remember any vaginal sex. There was not a full-on intercourse moment. But I do remember feeling him inside.” Crown counsel asked, “When did you feel that?” HL replied, “Before everything started. Before the anal part had been initiated.” Crown counsel asked if anything happened between the vaginal and the anal intercourse. HL stated that the vaginal intercourse happened as soon as he got on top of her. Crown counsel then asked when the vaginal intercourse happened in relation to getting the lube. HL stated, “Just before the lube.”
[173] Crown counsel asked HL why she didn’t disclose the August 31 vaginal penetration when she gave her evidence in-chief. “Probably just didn’t think about it. I had a lot to say and I just don’t know”, HL replied.
[174] With respect to the March incident, Crown counsel asked HL why she told Constable Holland that the vaginal penetration was consensual. HL stated that she could not recall. Crown counsel then asked, “Put yourself back to that March incident, at that moment, did you consent to vaginal penetration?”
[175] At this point defence counsel objected. I overruled the objection and allowed HL to answer the question. “Can I say I don’t remember?” was her answer.
[176] With respect to PC’s relationship with her daughter, HL indicated that she has not taken any steps to prevent PC from seeing P.
[177] At this point, the Crown formally closed its case. Defence did not, at this point, elect to call evidence.
[178] We moved to submissions and I heard submissions from both the Crown and the defence. I reserved and I advised Crown and defence that I would deliver judgment on May 30.
[179] Prior to May 30, however, I received word that defence counsel wished to reopen his case in order to call PC. The Crown was consenting to the reopening. We set July 21 as the return date.
Examination in-Chief of PC
[180] On July 21, 2023, I heard the evidence of PC.
[181] PC stated that he is now working full-time at a grocery store. He has been working there for about a year. He has a 20-year-old son and six-year-old daughter. He last saw his daughter just before Christmas of 2022. He stated that he is not on any conditions that prevent him from seeing her.
[182] He stated that he and HL were in a relationship for the better part of five years. While they were together, they always resided at the same address located at […] J Street.
[183] In the weeks leading up to the police being called, PC stated that his relationship with HL “wasn’t much of a relationship at all. We slept in the same bed. We fought more than we did anything.” He stated that this had been going on for at least a couple of years.
[184] With respect to the August 31, 2020 incident, defence counsel asked PC if he “recalled those events in general terms.” PC answered, “I do not recall that.” Defence counsel then asked, “Did such an incident happen?” PC stated, “No.”.
[185] Defence counsel then put the specific details of that incident, as related by HL, to PC. PC denied rolling her over, trying to “go for her anal area”, and applying lube and penetrating HL anally. He stated that at any point after August 31, 2020, he was not aware of her being injured or in physical discomfort.
[186] With respect to the March 22, 2021 incident, defence counsel asked PC if the events that HL testified about on that occasion took place. “I have no recollection of that”, PC stated.
[187] PC stated that to his knowledge, HL’s relationship with YD began in January 2021. He stated that HL told him that “they had started things back” in January.
[188] PC recalled being removed from the premises by police on June 18, 2021 and being taken to the hospital. He was discharged later the same night. A worker took him to HL’s to pick up some things. Then the worker drove him to a motel. He stated that when he first arrived back at HL’s residence she came outside and started yelling at him, “What are you doing here? You’re not supposed to be here.” PC stated that he told HL that he was told to come back and get some things and the worker was there to make sure that nothing happened. “I had a yelling match with her. She started yelling at me. I was yelling back at her”, PC told me. He denied banging on the doors and windows. He said that the worker explained to HL what her roll was and why she was there.
[189] PC denied ever being aware of any text messages that HL sent to AN.
Cross-Examination
[190] PC agreed that HL called the police in June 2021 because she was concerned for his mental health. “Yes, I tried to kill myself.”, he stated. He agreed that he had done so with a knife. When asked whether HL had seen this, PC stated, “Yes. I had even asked her to do it for me.” He agreed that HL seemed shocked and concerned about safety. He disagreed that she was emotional. “Her main concern was trying to get the kids and that out of the house and away from me and what was going on.”, he said. He did, however, agree that HL was upset and worried.
[191] PC stated that he had thoughts about killing himself “for a while and with everything going on when she asked me to leave that upped the ante.” He agreed that this was not the first time that HL asked him to move out.
[192] PC agreed that there was a period where he did move out for a little while, which he estimated at two to three months. He could not remember the exact timeframe. At first he thought that this happened in March of 2021. Then he thought perhaps it happened in the summer of 2020. He disagreed that it happened in the fall of 2020. When asked if he moved back in in March of 2021, he stated, “I think so, yeah.”
[193] He agreed that between March 2021 and June 2021, he and HL had discussions where she indicated that she wanted him to move out of the house. He did not want to go. “I wanted us to give the relationship a shot for our daughter.”, he said. Despite this, he agreed that HL wanted the relationship to end. “I was trying my best to work on things and make things easier for us”, he said. He agreed that although he has family nearby, he did not want to go live with them because they were “further out of town”.
[194] PC agreed that the relationship ended when he was arrested in June. He disagreed, however that up to that point, he considered HL to be his girlfriend. “I was trying to work things out but there was no effort on her end.”, he stated.
[195] He stated that he was not in a relationship with anyone else that he considered his girlfriend.
[196] When he moved out, he lived with HL’s mother.
[197] PC agreed that when the police arrived, HL was out of the house. He agreed that he had taken a knife to his stomach, but it did not penetrate. He had also asked someone to put the knife in him. He stated that he was frustrated that the police were called. He denied being frustrated about going to the hospital. He recalled making a joke with the police about the number of police cars on scene when he was taken into custody to go to the hospital.
[198] PC recalled being released from the hospital the same evening, heading back to HL’s house and then going to a motel. He stated that he had made the arrangements to stay at a motel. The police told him that he should find somewhere else to stay. He stated that when he was released from hospital, he was coherent and he knew what was going on.
[199] He also agreed that he was coherent and knew what was going on the next day. He agreed that he was not in a state of mental breakdown. “I was in work mode,” he said.
Defence Submissions
[200] Because of the way that the case unfolded, both Crown and defence made submissions twice.
[201] Defence counsel reminded me of the W.(D.) formulation.
[202] He stated (correctly) that PC’s evidence was brief in both cross-examination and direct evidence.
[203] He submitted that PC testified in a straight-forward manner. He denied that the incidents occurred.
[204] He was responsive to the questions of Crown counsel. He was not argumentative and agreed with most of the Crown’s suggestions.
[205] PC’s evidence that he wanted to try to salvage the relationship when he was apprehended in June was largely in agreement with HL’s evidence.
[206] Defence counsel noted that the Crown failed to cross-examine PC on his denials. This should leave the court with some questions.
[207] With respect to the evidence of HL, defence counsel argued that credibility and reliability are the main issues. He submitted that I should be extremely troubled by the difference in her evidence in court and what she told the police under oath. Defence counsel argued that a police interview room is very formal.
[208] Defence counsel allowed that it is natural and intuitive for a person who is speaking to the police to want to be believed. However, people should not be permitted to stretch the truth in the way that HL did. Such people, defence counsel warned, do a disservice to those who are actually telling the truth. Defence counsel maintained that the court cannot unjustly punish an accused person to bend over backwards to make a complainant comfortable in coming to court.
[209] With respect to the text messages, defence counsel agreed that they are admissible to rebut the allegations of recent fabrication. Without that allegation, they would not be admissible. The text messages, he maintained, cannot be used to bolster HL’s credibility or reliability.
[210] With respect to the text messages and HL’s in-court evidence, defence counsel argued that HL was picking and choosing what she shares with the court. He further argued that I should exercise caution because HL indicated in the text messages that she did not trust the justice system.
[211] At the end of the day, defence counsel maintained that HL’s dishonesty in relation to the August 31 incident taints her evidence in relation to the March allegation. If she was concerned about being believable and convincing with the police, I should be extremely concerned about whether she was frank and candid in court, being guarded and picking and choosing or tailoring her account of events to be believable and convincing. This alone should, in the estimation of defence counsel, give me a basis not to accept her evidence beyond a reasonable doubt.
[212] Defence counsel argued that the issue of consent to vaginal sex during the August 31, 2020 incident was the most troubling. At the end of the day, it simply is not credible for HL to have stated that she does not remember if she consented or not. This calls into question, he argued, whether the entire incident was consensual or whether it even occurred at all.
[213] Finally defence counsel argued that there were “other realities in play” that gave HL a reason to fabricate the allegations – particularly the issue of access to P and HL’s new relationship with YD.
Submissions of the Crown
[214] With respect to the failure to cross-examine the accused with respect to his denials, the Crown argued, citing R. v. Meadows 2023 ONSC 2695 that the Crown was entitled to follow this strategy.
[215] With respect to PC’s evidence, the Crown argued that there were elements of inconsistency and minimization. For example, he denied being angry or even irritated when the police were with him in the garage on June 18, but he ultimately admitted being frustrated. He only yelled after HL came outside and confronted him and yelled at him.
[216] The Crown also contended that the agreement between PC and HL on peripheral details corroborate what HL indicated.
[217] The Crown urged me that if I take HL’s evidence as a whole, including the text messages, and the evidence of Constable Holland, I can properly reject PC’s denials and find that the offences were proven beyond a reasonable doubt.
[218] With respect to the statements that PC made on arrest, the Crown noted that PC has now testified that the only girlfriend he had at this point in time was HL. Therefore, the statements that he made had to relate to HL and to no one else.
[219] With respect to motive to fabricate, the Crown argued that there was no evidence that lends credence to PC’s contention that HL fabricated the allegations in order to serve or protect her relationship with YD. There also is no evidence as to why PC last saw P at Christmas.
[220] The Crown maintained that HL gave a credible explanation for lying to Constable Holland on the issue of lubrication. She was uncomfortable and she was worried that the male officer would not believe her if she was truthful about the lubrication. The Crown argued that HL did not shy away from admitting this in cross-examination.
[221] The Crown argued that the text messages are important on this point because they include reference to lubrication – in September 2020. These are also messages to a friend, confidante, and someone she feels comfortable with. They should, the Crown maintained, absolve any issues I had in relation to the credibility and reliability of HL on the basis of the issue of the lubrication.
[222] With respect to the August 31 incident, the Crown argued that HL was focused primarily on the anal intercourse. Her evidence that she had forgotten about it when she testified in-chief that it was “an oops moment” makes sense. The initial vaginal penetration was the least intrusive and that’s why she didn’t mention it. That does not, argues the Crown, mean it did not happen or render it consensual. What HL found the most objectionable was the anal penetration followed by the second round of vaginal penetration. The main violation of her sexual integrity in her eyes – the anal penetration – is her main focus. This should not be fatal to her credibility and reliability.
Analysis
[223] The Crown must prove the elements of the offences beyond a reasonable doubt. The Crown bears the onus of establishing them. The onus never shifts to the accused. A reasonable doubt is not an imaginary, far-fetched or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone. It is a doubt that is based on reason and common sense. It is a doubt that logically arises from the evidence or the absence of evidence.
[224] In R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, the Supreme Court of Canada instructed triers of fact to assess evidence in this way:
a) First, if you believe the evidence of the accused, obviously you must acquit.
b) Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
c) Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[225] In assessing the competing evidence in this case, I cannot compare each account and decide which account I believe: R. v. Esquivel-Benitez, 2020 ONCA 160. I can believe or disbelieve a witness, but still be left with a reasonable doubt after considering all the evidence. Further, when considering the testimony of a witness, a court can accept all, some, or none of a witness’ testimony. Frailties and inconsistencies in a complainant’s evidence do not necessarily mean that her evidence should be rejected: R. v. J.J.R.D. 2006 40088 (ON CA) at paras. 46-48, leave to appeal to SCC refused, [2007] S.C.C.A. No. 69.
[226] Assessing credibility and reliability is key in this case. Credibility relates to whether a witness is speaking the truth as she believes it be. Reliability relates to the actual accuracy of the testimony. The witness’ ability to accurately observe, recall and recount the events must be assessed. A credible witness may give unreliable evidence: R. v. Morrissey, 1995 3498 (ON CA), [1995] OJ 639 (Ont. C.A.) at paragraph 33. R. v. HC [2009] OJ 1979 (Ont. C.A) at paragraph 26. The credibility and reliability of a witness must be “tested in light of all the other evidence presented.”: R. v. JJRD, supra, at paragraph 46.
[227] In assessing each witness’s account of what happened, I have considered the account’s internal consistency, it’s consistency with previous accounts, the significance of any inconsistencies, whether the account is inherently logical and whether the witness has an interest in the outcome of the proceedings.
[228] To assess reliability, I consider the circumstances of the observer, the quality of their recollection given the passage of time, whether their evidence has been influenced by other sources, the mental capability and limitations and their level of sophistication.
[229] Some inconsistencies are important; other less so. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth which is a cause for concern: R. v. Stewart 1994 7208 (ON CA), [1994] OJ 811 (Ont. C.A) at paragraph 27.
[230] In order to find PC guilty of sexual assault, I must be satisfied beyond a reasonable doubt that:
a) PC intentionally applied force to HL.
b) HL did not consent to the force that PC applied.
c) PC knew that HL did not consent to the force that he applied.
d) The force that PC applied took place in circumstances of a sexual nature.
[231] Appellate courts have given trial judges the following instructions in assessing the presence or absence of consent:
a) If the sexual assault case involves a different interpretation of essentially the same events, trial judges should consider whether the complainant, in her mind, wanted the sexual touching to occur. Once she has asserted that she did not consent, the question is one of credibility. If the trial judge is satisfied beyond a reasonable doubt that she did not consent, the inquiry shifts to the accused’s state of mind: R. v. Ewanchuck, (1999), 1999 711 (SCC), 131 CCC (3d) 481 (SCC) at paragraph 61.
b) The accused may then establish that on the basis of her words and conduct, the complainant was consenting: Ewanchuck, supra, at paragraph 63.
c) The accused’s belief that the complainant was consenting cannot be reckless or willfully blind: Ewanchuck, supra, at paragraph 65.
d) Silence, passivity or ambiguous conduct is not consent: Ewanchuck, supra, at paragraph 51.
e) While it is open for a complainant to change her mind, the accused must make certain that she has truly changed her mind before proceeding with further intimacies. The accused cannot rely on the mere lapse of time or the complainant’s silence or equivocal conduct to indicate that there is a change of heart, nor can he engage in further sexual touching to “test the waters”. Continuing sexual contact after someone has said “No” is, at a minimum, reckless conduct which is not excusable: Ewanchuck, supra, at paragraph 52.
f) The complainant must agree to the specific sex act. Agreement to one form of penetration is not agreement to all forms of penetration. Agreement to sexual touching on one part of the body is not agreement to all sexual touching: R. v. Hutchinson, (2014) 2014 SCC 19, 308 CCC (3d) 413 (SCC) at paragraph 54. Consent must be specifically renewed and communicated for each sexual act. It is not possible to give “broad advance consent”: R. v. Barton [2019] SCC 33 at paragraph 118.
g) Section 273.1 of the Criminal Code requires that the accused must take reasonable steps, in circumstances known to him at the time, to ascertain that the complainant was consenting. The reasonable steps requirement rejects the outmoded idea that a women can be taken to be consenting unless they say “no”. There is no catalogue of steps that constitute “reasonable steps”. Silence, passivity or ambiguous conduct is not a reasonable step. The more invasive the sexual activity and/or the greater the risk posed to the health and safety of those involved, the greater care is necessary in ascertaining consent. Greater care is also necessary where the parties are unfamiliar with one another and there is the risk of miscommunication, misunderstanding and mistake: R. v. Barton supra, at paragraphs 105 to 108.
h) Not only does no mean no, but only yes means yes. Nothing less than positive affirmation is required to establish consent: R. v. Goldfinch [2019] SCC 38 at paragraph 44.
[232] When assessing the credibility of the complainant the court must be careful to not rely on impermissible myths and stereotypes under the guise of common sense and logic: R. v. ARJD [2017] ABCA 237, aff’d [2018] SCC 8 (SCC); R. v. Steele [2021] ONCA 186.
The First and Second Branch of W.(D.)
[233] PC asks me to believe his denial that the incidents that HL complained of did not take place. I note that when he was asked about these incidents by his counsel, PC’s first response was to the effect that he did not have any recollection of either incident occurring. When counsel asked the follow-up question whether the incident in fact happened, PC stated, “No.”
[234] In my view, PC’s first answer tells the real story. PC does not recall the incidents in question.
[235] It is not hard to see why.
[236] I have already found that the statements which PC made to Constable Holland are admissible. They are statements that he makes when he is first confronted with the allegations. The statements are most telling about PC’s views of his relationship with HL.
[237] Despite the fact that consent or honest but mistaken belief in communicated consent are (by virtue of PC’s denial), technically, not in issue here, those issues are a bubbling pot that is under the surface of both the evidence of PC and HL.
[238] When PC learned about the allegations, his immediately stated, “She didn't say no multiple times. She said it once and then we just went with it.” In my view, this adequately describes what was going on in PC’s mind in both incidents. PC wanted to have sex with HL, particularly anal sex, and HL clearly said no. In his view, she was required to continually protest in order for him to understand that she did not want to have sex. This is consistent with parts of HL’s evidence about how the incident in March unfolded. She said “no” once and he persisted and she was “like whatever”.
[239] His second statement is equally telling: “She's my girlfriend and we have sex. How can I sexually assault my girlfriend?” This clearly implies that it is PC’s view that because HL was his girlfriend, she was in a constant state of consent to have sex with him. For PC, it is not possible to commit a sexual assault on one’s girlfriend.
[240] As I have set out above, this is not the law with respect to consent.
[241] Furthermore, these statements pour cold water all over the veracity of PC’s denials that the events took place.
[242] I simply do not believe him. I think that his first answer, that he did not recollect either incident taking place, is the truthful answer. He does not remember either incident taking place because for PC, saying “no” once is not sufficient if you continue to press and it simply is not possible to sexually assault one’s girlfriend. All of this of course leaves aside completely the notion that only yes means yes and there is no obligation on HL to continually protest PC’s advances, otherwise she is deemed to be consenting.
[243] Having so found, it is also impossible for me to find that, notwithstanding the fact that that I do not believe him, PC’s bare denial might reasonably be true. It is incongruous with my findings from his evidence.
[244] Finally, I also reject the evidence of PC based on my considered and reasoned acceptance of the evidence of HL, which I discuss in greater detail below. As Justice Doherty wrote in R. v. JJRD 2006 40088 at paragraph 53:
An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.
[245] In this case, there is conflicting evidence which I accept. That includes the evidence of HL and the evidence of Constable Holland with respect to what PC stated on arrest.
The Third Branch of W.(D.)
[246] There are issues with HL’s evidence. She did not tell Constable Holland about the lubrication. She did not remember the vaginal penetration in the August 31, 2020 incident. These are not peripheral details.
[247] I accept HL’s evidence that she did not tell Constable Holland about the lubrication because she wanted to be believed and she was concerned that Constable Holland would think that what happened was consensual if she disclosed the lubrication. She was also a woman telling a male officer about something that was deeply personal to her, intimate and private. The fact that she did not ask to speak to a female officer is immaterial. While this does not excuse her conduct in misleading the officer, it does explain it.
[248] I also accept that HL did not remember to tell me about the initial vaginal penetration in the August 31, 2020 incident because she was fixated on the anal intercourse. The anal intercourse – not the vaginal intercourse – was her main complaint and it was the conduct which, for HL, was the most profound violation of her sexual integrity.
[249] With respect to the consensual nature of the vaginal penetration, I have some doubts accepting that it actually was consensual despite the fact that HL told Constable Holland that was so. She really did not wish to have sex in either situation.
[250] With respect to the August 31 incident, I have a doubt in relation to the first incident of vaginal intercourse. Although she did not really wish to have sex, she communicated to PC that if he wanted to have vaginal intercourse, that was fine, but she was opposed to anal intercourse.
[251] Her answer in re-examination is most telling. After going back and forth on this over a number of days of evidence that were weeks apart, her answer when asked by the Crown to clarify was “Can I say I don’t remember?”
[252] It is also clear that the first round of vaginal intercourse on August 31, 2020 was of extremely short duration. HL called it an “oops moment”.
[253] What happened after that, however, was not consensual. She made it clear that she did not wish to have anal intercourse and PC proceeded despite that fact.
[254] With respect to the March incident, she did not wish sex at all and she made that clear. PC proceeded anyway.
Recent Fabrication
[255] With respect to the issue of recent fabrication, I find that this is not present. The relationship between HL and PC had been on the rocks for months. PC as much as admitted that was the case in his own evidence. I find that HL wanted out of the relationship and, for her, the incident the night before she gave her statement – where PC was threatening to take his life and asking HL to stab him – was the final straw. That does not, however, mean that she made up these allegations. HL told me that she stayed in the relationship because she “felt sorry” for PC. He was also the father of her child.
[256] Her inclination to remain in a relationship that is not working is understandable. Her disinclination to allow PC to return home after he wanted to kill himself and after he asked HL to stab him – when her child is in the residence – is also understandable. It does not render her sexual assault complaint a fabrication.
[257] HL’s complaint about the sexual assault came out naturally when Constable Holland was asking routine questions that are asked in every domestic occurrence. Although HL told the officer what happened to her, and later gave a detailed statement, she did not initiate the sexual assault complaint; she called the police to investigate PC’s mental health and his desire to take his own life. The police asked some pointed questions which resulted in the complaint being disclosed. She did not volunteer them until she was asked. This is inconsistent with recent fabrication.
[258] I also reject the theory that HL complained in order to ensure that PC did not exercise parenting time with their daughter. There is absolutely no evidence of this. At its highest, the evidence establishes that PC has not seen his daughter in some time; there is no evidence as to why that is the case.
[259] I also reject the theory that HL concocted these allegations in order to keep PC from returning to her home so that her new boyfriend YD could move in. While it is true that HL and YD were long-term friends and there was a renaissance in their friendship starting in January 2021, there is no evidence that she concocted these allegations to require PC to move out and allow YD to move in.
[260] Finally, I also reject recent fabrication on the basis of the text messages. The text messages were written to a friend and confidante. HL described both incidents in detail. She was clearly shocked and upset about what happened to her. Yet, she did not call the police to complain. Perhaps she did not call the police because, as is evidenced by the text messages, she did not trust the justice system. Nonetheless, the August 31 incident took place roughly ten months before her complaint to the police. The March incident took place about three months before her complaint. Both incidents are described in the text messaging after the incidents took place and long before HL’s complaint in June 2021. There is no recent fabrication here.
Admissibility of Text Messaging Conversation between HL and AN as “Narrative”
The Principles of Evidence in relation to “Narrative”
[261] The Crown also argued that this text messaging should be admitted as “narrative”. I reserved on that issue.
[262] The text messaging conversations between HL and AN are prior consistent statements. As such, they are inadmissible for the truth of their contents. Justice Watt described this rule in R. v. J.A.T. 2012 ONCA 177 at paragraphs 96 to 100 in this way:
[96] Another exclusionary rule prohibits introduction of prior consistent statements made by a person called as a witness at trial. Once again, the exclusionary rule is of general, but not unyielding application: R. v. Stirling 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 36; R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19, at para. 31. The principal justifications underlying the exclusionary rule are that prior consistent statements lack probative value and constitute inadmissible hearsay if tendered to prove the truth of their contents: Dinardo, at para. 36; Stirling, at para. 5; and Ellard, at para. 31.
[97] Among the recognized exceptions to the rule generally excluding prior consistent statements of a witness, are recent fabrication and narrative: Ellard, at paras. 32-33; and Dinardo, at para. 37.
[98] Where one party has made an allegation of recent fabrication in connection with a witness called by the opposite party, the opposite party can rebut the allegation by introducing other statements the witness made before the alleged fabrication arose, that are consistent with the witness’ trial testimony: Ellard, at para. 32. A “fabrication” can arise because outside sources have influenced the witness: Ellard, at para. 33; R. v. B. (A.J.), 1995 94 (SCC), [1995] 2 S.C.R. 413, at para. 1. To be “recent”, a fabrication need only have been made after the event about which the witness testifies. The rebutting statements must have been made before the alleged fabrication arose: Ellard at paras. 32-33; and Stirling, at para. 5. The rebutting statements are not evidence of the truth of their contents.
[99] Sometimes, prior consistent statements may be admissible as part of the narrative, to help the trier of fact understand how a complainant’s story was first disclosed: Dinardo, at para. 37; R. v. C. (G.), 2006 18984 (ON CA), [2006] O.J. No. 2245, at paras. 20-22. The narrative exception does not permit use of the prior consistent statements to confirm the truthfulness of the sworn allegation, but does permit its use to show the fact and timing of a complaint, which may help the trier of fact to assess truthfulness or credibility: Dinardo, at para. 37.
[100] Both the recent fabrication and narrative exceptions to the rule prohibiting the introduction of prior consistent statements permit introduction of the prior statements for a limited purpose. As with other items of evidence received for a limited purpose, the trial judge should instruct the jury about the limited value of this evidence. The instructions should make it plain that the jurors are not to consider the contents of the statements as proof that a crime has been committed: R. v. F. (J.E.) (1993), 1993 3384 (ON CA), 85 C.C.C. (3d) 457 (Ont. C.A.) at p. 476.
[Emphasis mine]
[263] In R. v. Khan 2017 ONCA 114, the Court of Appeal considered this issue again. In this case, the accused was a police officer. It was alleged that he sexually assaulted the complainant in his police car when she was arrested for possession of cocaine. When she was taken to the station, she told another police officer that she had been searched three times. The Crown sought to admit this evidence on the basis that it met the criteria for admission of hearsay following the principled approach. The trial judge admitted the evidence on this basis. The Court of Appeal found that this was an error. With respect to the usefulness of these statements as narrative, Justice Hourigan explained the law in this way at paragraphs 29 to 44:
[29] Other recognized exceptions include admitting prior consistent statements as pure narrative evidence, and narrative as circumstantial evidence: Paciocco, at p. 182.
[30] As pure narrative, prior consistent statements carry no weight because they are tendered simply to give the background to explain how the complaint came to be before the court. This court described the pure narrative exception in R. v. F. (J.E.) (1993), 1993 3384 (ON CA), 16 O.R. (3d) 1, [1993] O.J. No. 2589 (C.A.), as allowing the decision maker to understand the "chronological cohesion" of the case. The statement is not used to prove the truth of its contents, nor are there any inferences arising that would make the case of one person more compelling than that of another. It is merely an aid in understanding the case as a whole.
[31] But sometimes the circumstances surrounding the making of the prior consistent statement are such that the statement assists in assessing the reliability and credibility of a witness' in-court testimony, giving prior consistent statements admitted as "narrative" a more substantive use: R. v. Dinardo, [2008] 1 S.C.R. 788, [2008] S.C.J. No. 24, 2008 SCC 24, at para. 39; R. v. Evans, 1993 102 (SCC), [1993] 2 S.C.R. 629, [1993] S.C.J. No. 30, at para. 32. This is referred to as narrative as circumstantial evidence.
[32] In R. v. C. (G.), 2006 18984 (ON CA), [2006] O.J. No. 2245, 2006 CarswellOnt 3413 (C.A.), at para. 22, Rouleau J.A. identified the limited way in which prior consistent statements can be used to assist the trier of fact in assessing the cogency, and therefore the reliability and credibility, of a witness:
In cases involving sexual assault of young children, the courts recognize the difficulty in the victim providing a full account of events. In appropriate [page529] cases, the way the complaint comes forth can, by adding or detracting from the logical cogency of the child's evidence, be a useful tool in assisting the trial judge in the assessment of the child's truthfulness.
[33] While Rouleau J.A. was discussing the use of prior consistent statements to assess the reliability and credibility of young children, there is no reason why the principle should be so restricted. 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: C. (M.), at para. 66; R. v. Curto, [2008] O.J. No. 889, 2008 ONCA 161, 230 C.C.C. (3d) 145, at para. 37.
[34] As this court noted in Curto, at para. 34, it will not always be necessary to know why or how the case came to the attention of the police; however, the fact that a statement was made, and the context in which the statement is made, can be probative and help in assessing a witness' credibility.
[35] The line between the permissible and impermissible uses of prior consistent statements is a fine one, as noted by the Supreme Court of Canada. In Dinardo, the prior consistent statements of an intellectually disabled complainant were, at trial, used to corroborate her in-court testimony. The Quebec Court of Appeal held that the trial judge erred in using the complainant's prior consistent statements to corroborate her evidence that the crime had been committed. The Supreme Court of Canada agreed and highlighted the distinction between the permissible and impermissible use of prior consistent statements. Charron J. stated, at para. 37:
In some circumstances, prior consistent statements may be admissible as part of the narrative. Once admitted, the statements may be used for the limited purpose of helping the trier of fact to understand how the complainant's story was initially disclosed. The challenge is to distinguish between "using narrative evidence for the impermissible purpose of aeconfirm[ing] the truthfulness of the sworn allegation'" and "using narrative evidence for the permissible purpose of showing the fact and timing of a complaint, which may then assist the trier of fact in the assessment of the truthfulness or credibility".
(Emphasis added; citations omitted)
[36] Charron J. cited this court's decision in C. (G.), in which Rouleau J.A. stated, at para. 20:
. . . the evidence of prior complaint cannot be used as a form of self-corroboration to prove that the incident in fact occurred. It cannot be used as evidence of the truth of its contents. However, the evidence can "be supportive of the central allegation in the sense of creating a logical framework for its presentation . . . and can be used in assessing the truthfulness of the complainant. [page530]
[37] In this case, while the trial judge did not expressly refer to the narrative as circumstantial evidence exception, it is clear from his reasons that it was through this lens that he considered the admissibility of the complainant's statement. The trial judge stated [see 2015 ONSC 7187, [2015] O.J. No. 6200, at para. 13]:
Having touched on the issue of an allegation of fabrication by the defence, I would also admit the statement as a prior statement of [the complainant] as relevant and capable of assisting the trier of fact in determining a fact in issue and the credibility of [the complainant], it having been put squarely in issue that she fabricated her evidence.
Such admission has the capacity to impact positively, where admission of the statement directly addresses the allegation of fabrication, as but one factor to be taken into account as part of the larger assessment of credibility.
[38] The summary conviction appeal judge addressed the admissibility of the statement as a prior consistent statement very briefly, stating, at para. 14:
In Khan, the court does address circumstances in which a prior consistent statement may be admissible; however, these relate to cases involving child complainants and the evidentiary challenges associated with their testimony.
[39] The summary conviction appeal judge also failed to address the basis upon which the trial judge admitted the statement as a prior consistent statement, which, in large part, drove the court's ultimate conclusion that the statement was misused. In particular, and as noted above, in some cases a prior statement has independent cogency, and is not used merely to support the testimony of the witness by duplication. A prior consistent statement can be used not to corroborate the evidence of the witness, but to provide the surrounding circumstances and context to evaluate the credibility and reliability of the witness' in-court testimony: F. (J.E.), at para. 89.
[40] It is the "declaration part" of the prior consistent statement that is relevant and leads to permissible circumstantial inferences. Given the circumstances in which the complainant made her statement in this case, the trial judge did not err in admitting the statement under the narrative as circumstantial evidence exception to the prior consistent statement rule.
[41] Although the statement was admissible under the narrative as circumstantial evidence exception to the rule against prior consistent statements, such evidence cannot be used for the prohibited inference that consistency enhances credibility, or the incorrect conclusion that the simple making of a prior [page531] consistent statement corroborates in-court testimony: Paciocco, at p. 199.
[42] The summary conviction appeal judge concluded that the trial judge had used the prior consistent statement in this impermissible way, stating, at para. 15:
The trial judge used the prior consistent statement for the truth of its contents. This is highlighted where he states that it showed "the consistency of her complaint" and "it assisted the court in determining the overall credibility in a positive way." The trial judge appears to have relied on the prior consistent statement as a foundational pillar for his decision. The use of the prior consistent statement in this way illustrates the reasons why a prior consistent statement is presumptively inadmissible. Just because a witness says the same thing twice does not mean that she is more likely to be telling the truth. The trial judge made an error in the treatment of an important piece of evidence which appears to have informed his conclusion.
[43] In my view, taking the reasons as a whole, the trial judge used the prior consistent statement for the permissible purpose of evaluating the context in which the initial complaint arose, in particular the fact and timing of the complaint, and the spontaneous nature in which it came out, in order to assist him in assessing the truthfulness of the complainant's in-court testimony. While some of the trial judge's language was not ideal, his phraseology must be put in context. In referring to the "consistency of her complaint", the trial judge stated:
[The statement's] spontaneity and the context in which it was made, are capable of, and do support her credibility and the consistency of her complaint. In short, the court finds her evidence credible.
In the court's view, the spontaneity of that statement is compelling, and also assists the court in determining the overall credibility of [the complainant], and impacts upon her credibility in a positive way.
[44] The trial judge properly placed the prior consistent statement on the scale in assessing the credibility of the complainant's in-court testimony by considering the circumstances in which she made her initial complaint to Constable Flint. To this extent, the prior consistent statement does add to the credibility of the complainant's in-court testimony and had probative value beyond mere repetition. It was evidence of the sequence and timing of events and the emotional state of the complainant at the time of the utterance, and assisted the trial judge in evaluating the credibility of the complainant's in-court testimony. The trial judge's use of the prior consistent statement was proper.
[264] In a separate concurring judgement, Justice Doherty argued that it is not sufficient to merely chalk up the admissibility of the prior consistent statement as going to credibility. More is required. He explained at paragraphs 59 to 64:
[59] The admissibility of a prior consistent statement, like the admissibility of other forms of evidence, turns on the relevance, materiality and probative value of the evidence. When a prior consistent statement is tendered, the admissibility inquiry should focus on these broader considerations rather than the technicalities of established exceptions. This change in focus would not produce any significant change in the circumstances in which the prior statement would be admitted. The existing exceptions are to a large extent a product of the application of the broader principles underlying the admissibility of evidence. An approach which looks to broader principles would, however, require counsel and the trial judge to come to grips with the [page535] precise use of and value of the evidence of the prior consistent statement in the specific circumstances of the case. I think an approach based on the broader principles is much more likely to focus the minds of counsel and the trial judge on exactly what the evidence is said to do and the ability of the evidence to further that stated purpose. Instead of broad statements such as "the evidence goes to credibility", the principled approach should produce reasons explaining exactly how the evidence, in the circumstances of the case, goes to credibility.
[60] When a party tenders a prior consistent statement, the court must first determine the purpose for which that evidence is tendered. If the evidence is tendered for its truth, in this case to prove that the complainant was in fact searched three times before she was to be searched at the police station, the evidence must qualify for admissibility under the controlling hearsay principles. My colleague has referred to those principles (see paras. 15-24).
[61] If the prior consistent statement is not offered for the truth of its contents, the threshold admissibility question remains the same – for what purpose is the evidence offered? That purpose must be one which can properly be the subject matter of evidence in the proceedings. In other words, the purpose must have relevance to a material issue in the proceeding.
[62] Once the purpose for offering the evidence is identified, the party tendering the evidence must show that it has some probative value in respect of the purpose for which it is offered. For example, if it is said that the evidence of the prior consistent statement is relevant to the complainant's credibility, the party offering the evidence must show how it is relevant to the complainant's credibility.
[63] The operation of the approach I have outlined can be described by reference to one of the most common situations in which a prior consistent statement is tendered at trial. The Crown may seek to elicit evidence of a statement made by a complainant to the police shortly after an alleged assault. That statement may be consistent with the complainant's trial testimony. When the statement is offered, the first question in the evidentiary inquiry must be – for what purpose is the evidence offered? If the Crown argues that the statement is admissible to prove as true the contents of the statement, the Crown must establish that the statement is admissible hearsay.
[64] If the Crown does not suggest that the evidence is admissible to prove the truth of its contents, the Crown must identify some other purpose for which the statement is offered. The Crown may argue that the prior consistent statement supports [page536] the complainant's credibility. Clearly, the complainant's credibility is material to the proceeding and is properly the subject matter of evidence at trial. It is not enough, however, for the Crown to show that the complainant's credibility is a material fact. The Crown must also demonstrate how the prior consistent statement can impact positively on the complainant's credibility. If the Crown's argument comes down to the suggestion that the consistency between the prior statement and the complainant's evidence at trial justifies admissibility, the argument fails because consistency on its own provides no insight into credibility. To know that the complainant made a statement that is consistent with his evidence at some earlier point in time simply does not assist in the assessment of his credibility.
[Bold face emphasis mine]
[265] At paragraphs 67 to 71, Justice Doherty then explained exactly how the prior statements went to the complainant’s credibility:
[67] I begin with the substance of the complainant's evidence. She testified that she was searched by the respondent three times in the police cruiser. The first two searches did not concern her. The complainant was unfamiliar with police practices and assumed that the respondent was following established procedures. During the third search, the respondent shone a flashlight down her shirt and looked at her breasts. The complainant told the officer that this made her uncomfortable and he stopped.
[68] On the complainant's evidence, she did not know if the respondent's actions constituted a sexual assault. She had no intention of alleging that the respondent had sexually assaulted her, or complaining about his behaviour when she arrived at the police station. In her testimony, the complainant presented as [page537] a reluctant complainant who had done nothing to initiate the allegations against the respondent and was testifying only because she had been subpoenaed. On her evidence, the police initiated the sexual assault investigation and carried it forward to trial.
[69] The complainant was vigorously cross-examined. In that cross-examination, the defence alleged that the complainant had fabricated the allegations, and that the respondent had not searched her at all in the vehicle. During cross-examination, counsel suggested to the complainant various reasons she might have to fabricate the allegations.
[70] The complainant's evidence that she did not complain about the respondent's conduct at the police station, and that it was the police who initiated the sexual assault investigation in response to her comment that she had been searched three times, was consistent with and therefore tended to confirm her trial evidence to the effect that she was a disinterested, reluctant complainant with no real interest in the outcome of the trial. If the trial judge accepted that the complainant did not initiate the allegation and was disinterested in pursuing it, that finding could reasonably make her evidence describing the events in the police car more credible. Also, if the trial judge accepted that the complainant had not been the one to make the sexual allegation and had not pursued that allegation, the defence suggestion that she had fabricated the allegation would have no force.
[71] In my view, the evidence of the complainant's interaction with the police at the station, including what she said to Constable Flint, was relevant to a proper assessment of her credibility. It was therefore admissible even if it was a prior consistent statement.
[Bold face emphasis mine]
[266] In R. v. Camara 2021 ONCA 79 at paragraph 55 Justice Watt defined narrative in this way:
Narrative evidence is necessary to understand the unfolding of events surrounding the alleged offence. Because it is not tendered or received as evidence of the truth of what was said, it does not fall foul, rather beyond, the reach of the hearsay rule: Maglior, at para. 23. Likewise, evidence of threats: T. (J.A.), at para. 95; Subramaniam v. Public Prosecutor, [1956] 1 W.L.R. 965 (P.C.), at p. 970.
[267] See also R. v. Ellis 2022 ONCA 535.
[268] Two cases in the Superior Court have considered this issue particularly as it relates to text messages in a sexual assault case. In R. v. S.R. 2023 ONSC 351, the Crown sought to tender text messages as res gestae statements and narrative. Justice Barrett declined to admit them on either basis. With respect to the narrative, Her Honour found that they were “not truly essential” as what happened was fully explained by the complainant in her evidence.
[269] In R. v. NW, 2018 ONSC 774 Justice Nakatsuru was sitting on a summary conviction appeal where the trial judge admitted text messages under the spontaneous utterance (res gestae) hearsay exception. Justice Nakatsuru found that neither the spontaneous utterance exception or the principled approach to hearsay were made out, stating at paragraph 56:
The only real value of these texts comes not from the truth of their contents but as narrative as circumstantial evidence supporting the complainant’s credibility. It should not be admitted here for the truth of their content, where the declarant was able to testify and give a full and consistent account of what happened to her.
[270] HL was able to give a full account of what happened to her.
[271] Although they are admissible as “narrative”, this admissibility does not go so far to as to admit into evidence what HL told AN for the truth of its contents. The text messages are, therefore, only admissible as circumstantial evidence going to HL’s credibility in the following ways:
a) HL testified that the allegations arose in the course of routine police questioning when they were completing a domestic violence questionnaire. She did not call the police to report the sexual assault. She called them to report PC’s suicidal behaviour. The text messaging records are consistent that after the events took place HL really wanted no part with the justice system. She just wanted to confide in AN. I am sure that she never thought her text messages with AN would be read by anyone other than AN.
b) The text messaging assists me in confirming HL’s evidence with respect to the timing of the two complaints. There is text messaging in September in relation to the incident which HL says took place three weeks earlier on August 31. There is text messaging shortly after the second incident in March.
c) The text messaging assists me in resolving the credibility issues raised by defence counsel in HL’s cross-examination, specifically the reasons that HL did not disclose the initial vaginal intercourse in the first incident, and the use of lubrication. HL testified that she believed that if she disclosed the lubrication, Constable Holland would think that the August 31 incident was consensual. She also testified that she was somewhat embarrassed about discussing what happened to her with a male police officer. The text messaging confirms that HL did not want to talk about what happened to her. She needed to discuss what happened with her friend and confidante in order to dispel her own doubts and confirm her own intuition that what happened to her was not right. She made AN promise that she would not disclose what she told her. She was also embarrassed about the initial reaction of her body to PC’s approach in the second incident. This is the “fine line” that relates to credibility on which the text messaging is admissible.
Summary
[272] I do not believe the accused and his evidence does not leave me in doubt.
[273] The complainant’s evidence is credible and reliable. She gave a full and candid account of what happened to her in court. Her explanation for failing to add details in her police statement pertaining to the issue of lubrication, the initial intercourse on August 31 and whether the initial intercourse on August 31 was consensual makes sense.
[274] There is no evidence of recent fabrication. The text messaging record also bolsters this finding.
[275] There will be a finding of guilt on both counts.
Released: October 5, 2023
Signed: Justice J.R. RICHARDSON
[^1]: I am aware that “the mccan house” is the women’s shelter in Pembroke.