COURT FILE AND PARTIES
COURT FILE NO.: 397/12
DATE: 2013-10-09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Francis Ozawagosh
Respondent
Leonard Kim, for the Crown
P. Berk Keaney, for the Respondent
HEARD: October 7, 2013
DECISION ON MOTION
r.d. gORDON J.:
Overview
[1] The Crown brought the motions before me to have certain issues determined in advance of the accused’s trial on charges of sexual assault and sexual exploitation. As outlined below, certain matters have been resolved with the consent of the accused. The only issue requiring argument was the Crown’s application for an order that two prior consistent statements made by the complainant be admitted as evidence at trial.
Background
[2] It is alleged that between August 25 and September 25, 2011, the accused committed acts of sexual assault and sexual exploitation upon the complainant, who was then 16 years of age. The allegations went unreported until November of 2011 when the complainant first made disclosure to her boyfriend, D.S.. That disclosure was made in response to enquiries by D.S. about what was bothering her, as he had noticed significant changes in her behaviour. The statement made by the complainant was fairly detailed in terms of what the accused was alleged to have done. D.S. encouraged her to tell her mother and shortly thereafter she did so, resulting in the second prior consistent statement I am asked to deal with. The complainant’s mother reported the allegations to the police, eventually resulting in the charges which are before this court.
Applicable Legal Principles
[3] In R. v. Dinardo 2008 SCC 24, [2008] 1 S.C.R. 788, the Supreme Court of Canada provided the following summary of the law applicable to prior consistent statements and the difficulty encountered in determining their admissibility:
[36] As a general rule, prior consistent statements are inadmissible (R. v. Stirling, [2008] 1 S.C.R. 272, 2008 SCC 10). There are two primary justifications for the exclusion of such statements: first, they lack probative value (Stirling, at para. 5), and second, they constitute hearsay when adduced for the truth of their contents.
[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 to 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 ‘confirm[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 the assist the trier of fact in the assessment of truthfulness or credibility”…
[4] I take additional direction from the Ontario Court of Appeal in R. v. J.E.F., 1993 3384 (ON CA), 85 C.C.C. (3d) 457 in which it was succinctly noted that prior complaints are not admissible for the truth of their contents, but only for the fact of their existence. In that case, the court restated that evidence of prior consistent statements can provide assistance to the trier of fact either with respect to the credibility of the declarant/witness or with respect to a fact in issue.
Analysis
[5] The accused concedes that the prior consistent statement made by the complainant to her mother is admissible as narrative to explain how the allegations came to the attention of the police. However, it is not necessary that specific details of the allegations related by the complainant need be given in testimony by her mother. It is enough if she relates to the court that the complainant complained to her of serious sexual misconduct by the accused.
[6] With respect to the prior consistent statement to D.S., the accused takes the position there is not a sufficient factual or jurisprudential basis for the admission of this statement into evidence. In particular, he argues that its admission is not essential to the narrative, is not necessary to understanding how events unfolded, and provides no assistance in resolving inconsistencies, filling in gaps of time, or explaining some otherwise unexplained aspect of the case.
[7] Were the evidence of D.S. confined only to what he was told by the complainant, I would tend to agree with the accused. The complainant in this case was 16 years of age when the events are alleged to have occurred and is now over the age of 18. There is no suggestion she has difficulty situating events in time, is easily confused, or has tendencies to exaggerate or be dishonest. His bare recitation of her complaint is not required to discern the logical cogency of her evidence or how the matter came to the attention of the authorities.
[8] However, the evidence of D.S. is expected to include his observations of significant changes in the demeanor of the complainant prior to the disclosure being made. If that evidence is admitted at trial without allowing him to give evidence about what transpired between them as a result, his credibility might be significantly affected. That is, one might reasonably expect a boyfriend who sees significant changes in his girlfriend’s demeanor to ask her what is wrong and to obtain a response from her. Without evidence of this transpiring, I might have good reason to question the D.S.’s credibility.
[9] Furthermore, how the complaint first came to be made may have probative value in assessing the credibility of the complainant. In this regard, the statement of the complainant is not admissible for the truth of what she said but for the circumstances in which she said it.
[10] Accordingly, it is my view that the prior consistent statement is admissible as narrative and to assist in the assessment of the credibility of D.S.. As with the complainant’s mother, I do not see any need for D.S. to testify about the particulars of the statement made to him. It is sufficient that the Crown lead evidence of her complaint of serious sexual misconduct on the part of the accused.
[11] Clearly, the complainant’s past consistent statements are not to be admitted for their truth. I have little doubt this basic tenet of our law of evidence will be drawn to my attention once again at the trial of this matter.
Conclusion
[12] The Crown shall be entitled to lead evidence of the prior consistent statements of the complainant, but in general terms that she complained of serious sexual misconduct by the accused, without further particulars.
[13] With respect to other matters resolved in a consent basis, it is ordered as follows:
The complainant shall be entitled to testify with the assistance of a screen placed so that her view of the accused will be obstructed.
In the event trial counsel wishes to introduce the evidence of the complainant at trial pursuant to section 715.1 of the Criminal Code, such counsel shall be prohibited from eliciting further evidence from the complainant during examination in chief.
Mr. Justice Robbie G. Gordon
Released: October 9, 2013
COURT FILE NO.: 397/12
DATE: 2013-10-09
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Francis Ozawagosh
DECISION ON MOTION
R.D. Gordon J.
Released: October 9, 2013