ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-SA-5081
DATE: 2014/03/21

BETWEEN:

HER MAJESTY THE QUEEN
Applicant

– and –

Y.C.B.
Respondent

Suzanne Schriek, for the Applicant

Russell Silverstein/Shannon O’Connor, for the Respondent

HEARD: February 10, 2014

DECISION ON ADMISSION OF ACCUSED PURSUANT TO r. v. eDGAR

lALONDE j.

Background

[1] Y.C.B. is a public school teacher. He is accused of twelve counts of sexual offences in relation to five complainants, all of whom are former students at schools where Y.C.B. worked as an occasional teacher between December 2010 and November 2011. The first two complainants were H.T. and A.P., both students of O. school.

[2] The complainant H.T. initially disclosed her complaint to her mother. H.T’s mother then complained to the school principal. After receiving this complaint, the school principal asked H.T. to come to her office. When H.T. returned to class after speaking with the principal, Y.C.B. questioned her as to what she had discussed with the principal. H.T. told Y.C.B. that she told the principal that she had witnessed Y.C.B. lift A.P.’s dress in class when he was alone with A.P. and H.T. H.T. also told Y.C.B. that he was in trouble with the principal. That same afternoon, the school principal called Y.C.B. and told him not to come to the school the following day. He tried to get the principal to give him further details but the principal refused to give him any specifics concerning the allegation.

[3] Y.C.B., that same evening, called H.T.’s mother to set up an appointment with her and her daughter H.T. During the trial, he said that he did that to find out the truth. He used the words “pour connaître la vérité” at trial.

[4] The next morning, Y.C.B. spoke to a union representative and obtained more information. He was told that H.T. had made a second separate complaint. A.P., another student taught by Y.C.B., had made the first complaint. Y.C.B. wrote an account of what he felt had taken place between him and the two girls and took the document with him to his interview with Detective Joanne Marelic of the Ottawa Police Services the next day.

[5] Seventy minutes after the video interview with Detective Marelic began, Y.C.B. made exculpatory statements to Detective Marelic. Generally, this would be considered a prior consistent statement and would not be admissible into evidence. However, defence counsel argues that the statements should be admitted in evidence pursuant to R. v. Edgar (2010), 101 O.T. (3d) 161(C.A.), as they were spontaneous. The Crown argues that such statements were not spontaneous and should be excluded. It was only after one hour of interviewing that Detective Marelic informed Y.C.B. that the allegations were that he had touched the student’s bum.

The Issue

[6] Should Y.C.B.’s statement to the police officer be admitted in evidence as an exception to the general rule excluding prior consistent statements?

The Law

[7] M.J. Moldaver J.A. in R. v. Badhwar, 2011 ONCA 266, [2011] O.J. No. 1541 (C.A.) explains R. v. Edgar at paras. 17, 18, and 19:

17 Edgar stands for the proposition that "it is open to a trial judge to admit an accused's spontaneous out-of-court statements made upon arrest or when first confronted with an accusation as an exception to the general rule excluding prior consistent statements as evidence of the reaction of the accused to the accusation and as proof of consistency, provided the accused takes the stand and exposes himself or herself to cross-examination". The statement does not go in for its truth (unless it is otherwise admissible as original evidence) but "is evidence of the reaction of the accused, which is relevant to the credibility of the accused and as circumstantial evidence that may have a bearing on guilt or innocence". (See Edgar at para. 72).

18 The proposition of law stated in Edgar must be assessed against the factual backdrop of that case. In Edgar, the accused was literally caught by the police in the act of stabbing his girlfriend. At para. 76 of the decision, Sharpe J.A. described the statements that Edgar wished to have admitted into evidence as follows:

The first two statements were spontaneous and made within minutes of the appellant's arrest for murder. The appellant was in a highly agitated state and he had little time to think or to fabricate a story. While the third statement was made four hours after the arrest, it was made at a time when the appellant was in the hospital recovering from the injuries he had sustained in the altercation and the third statement was really a continuation of the first two statements. In my view, the appellant's three out-of-court statements may fairly be described as statements made by an accused person upon his arrest and upon being first confronted with the allegation of murder. [Emphasis added.]

19 In the circumstances, Sharpe J.A. found that while testifying, Edgar should have been permitted to inform the jury of the contents of those statements in their entirety and the trial judge had erred in holding that only parts of them were admissible…

[8] In R. v. Badhwar, Moldaver J.A. dismissed the appeal of the trial judge’s decision to not admit Mr. Badhwar’s statement to the police that would establish his reaction upon being confronted with an accusation. Moldaver J.A. said that the accused’s statement could hardly be characterized as spontaneous as Mr. Badhwar had five hours to consider his position and “think things out” before going to the police station. Mr. Badhwar had the opportunity to speak to his friends after the accident either directly or by cell phone, before speaking to the police.

[9] D.H. Doherty J.A. cited the decision in R. v. Badhwar in R. v. Kailoyapillui, 2013 ONCA 248, [2013] O.J. No. 1795 at para. 61, agreeing that a prior consistent statement has to be excluded if it is not given spontaneously by an accused. At para. 60, he states: “the circumstances surrounding the making of the statement are crucial to the determination of admissibility under the Edgar analysis.”

Analysis and Decision

[10] I agree with Crown counsel’s position that upon Y.C.B.’s arrival at the police station, his opportunity to have his prior consistent statement admissible at trial for proof of consistency and to bolster his credibility was already gone.

[11] I am influenced by the enormous amount of time that had elapsed between Y.C.B. questioning his young student at the end of class about the purpose of her visit with the school principal and protesting his innocence 73 minutes after his video interview with Detective Marelic had commenced at the police station. In between these events, he had spoken to the school principal, spoken to another child’s mother during the same evening, spoken with his union representative and spoken with a lawyer.

[12] Y.C.B. arrived with a prepared text about his involvement with his students and spoke of his involvement with H.T. without being prompted by Detective Marelic. Without being asked, he told Detective Marelic about the incident when he was alone with A.P. in his class at school. He also spoke about the week H.T. was under punishment during lunch hour for one week. All of these conversations took place before Detective Marelic gave Y.C.B. the final particulars of the charges against him. He had received legal advice and was content with it. He had received a caution from the police officer that anything he said could be used in evidence against him.

[13] Y.C.B. had several hours to think about what he was going to say to Detective Marelic. Y.C.B. knew that he was being questioned about touching little girls. Y.C.B. had over 14 hours to “think things out.”

[14] The application is dismissed and is not admissible as evidence of the reaction of Y.C.B. which would have been relevant to his credibility or as circumstantial evidence that might have had a bearing on guilt or innocence.

Mr. Justice Paul F. Lalonde

Released: March 21, 2014

COURT FILE NO.: 12-SA-5081
DATE: 2014/03/21

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Applicant

– and –

Y.C.B.

Respondent

DECISION ON ADMISSION OF ACCUSED PURSUANT TO r. V. eDGAR

Lalonde J.

Released: March 21, 2014