COURT FILE NO.: CR-11-5008

DATE: 2014/02/10

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MICHAEL GRANT SLATER

Lisa Miles and Sarah Fountain, for the Crown Jill Copeland and Jessica Orkin, for the Applicant

HEARD: January 23 and February 11, 2014 (Ottawa)

RESTRICTION ON PUBLICATION

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the complainant J.R. may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

RULINGS ON EVIDENTIARY MATTERS

PARFETT J.

[1] This matter is an historical sexual assault proceeding before a jury. The indictment contains five counts involving two complainants and the allegations are of indecent assault, gross indecency and buggery. There are four matters that require rulings:

a) Whether Defence counsel should receive disclosure of the unedited notes of a psychologist; b) Whether Crown counsel can ask certain questions of one of the complainants; c) Whether the psychologist should be permitted to testify on the basis of his notes alone; and finally d) Whether Crown counsel can call evidence to rebut an allegation of recent complaint.

Counsel were provided with these decisions during the course of the trial. What follows are my reasons.

Background

[2] The accused in this matter, Michael Grant Slater, was an elementary school teacher and taught both of the complainants. The school in question was the Elizabeth Park Intermediate School. It was on the CFB Uplands military base and most of the parents of the children that attended this school were members of the Canadian Forces.

[3] In October 2010, Mr. Slater was charged with sexual assault involving the first complainant K.B. After charges were laid, a news article appeared in the Ottawa newspapers asking anyone with information in relation to the accused to contact Ottawa Police. Further charges were laid with respect to the allegations of the second complainant, J.R.

Disclosure of Dr. Flewelling’s notes

[4] Dr. Robert Flewelling was a school psychologist. Mr. R. was referred to him when he was in grade twelve. Mr. R. discussed a number of issues in his life with the doctor, including the allegation that he had had an inappropriate relationship with a teacher while in intermediate school. Dr. Flewelling’s notes were the subject of a third party records application. I gave a ruling on that matter on July 3, 2013 and disclosed redacted notes of Dr. Flewelling’s counselling sessions with Mr. R. Subsequently, Crown interviewed Dr. Flewelling. He reviewed his notes in their entirety in order to refresh his memory with respect to his dealings with Mr. R., which had occurred almost thirty years earlier. In this interview, it is apparent that Dr. Flewelling made reference to parts of his notes that had been redacted. In addition, Crown counsel now proposes to call Dr. Flewelling as a witness. Consequently, Defence now asks for the unedited version of those notes.

[5] Defence contends that this situation is no longer one of third party records, but rather a situation where a witness will take the box and refresh their memory from notes. In that situation, defence contends, they have a right to see the notes in their unedited form.

[6] Crown argues that there are still privacy concerns regarding these notes. She concedes that Dr. Flewelling did review the unedited record. Furthermore, Dr. Flewelling did refer to portions of the record that had been edited out although he had been advised that Crown only had a redacted record. In his discussion, Dr. Flewelling made reference to Mr. R.’s sexual history generally as well as the fact that ‘personal difficulties’ were the reason for the referral.

[7] Crown states that even if Defence gets the unedited records it is unlikely that there is anything that Defence could use in the absence of a s. 276 application. Defence agrees with this latter submission but points out that there is a difference between receiving the records and using them and insists that they now have a right to see the records.

[8] I agree with Defence that, once Crown decides to call a witness who intends to rely on notes to refresh his memory, the situation is no longer governed by s. 278.2 of the Criminal Code.[^1] Instead it is the common law that governs the process.

[9] At common law, if a witness uses notes to refresh his memory while testifying, it is clear that counsel for the other party is entitled to inspect the record that is being relied on.[^2]

[10] While there is some controversy over when counsel for the opposing party should be entitled to get the notes for review, the prevailing position in Ontario is that counsel should receive the notes in advance of the witness testifying. In Cornerstone, the court held:

In my view, counsel cross-examining a witness is entitled to production of any document or notes (or item) that was reviewed (or examined) by the witness to refresh his or her memory before going into the box. It does not matter whether the act of refreshing occurred minutes, hours, days or months before testifying. Cross-examining counsel is entitled to production for the purpose of testing the reliability and truthfulness of the witness.[^3]

[11] Consequently, Defence has the right to receive and review all the notes of Dr. Flewelling in advance of him testifying.

Exclusion of certain evidence of J.R.

[12] There are five areas of evidence that Crown seeks to elicit from Mr. R. to which Defence objects. These areas are as follows:

1. On one occasion, Mr. R. and a friend were with Mr. Slater eating pizza and Mr. Slater suggested that they all have a ‘circle jerk’. Mr. R. understood this to mean mutual masturbation. His friend was visibly upset at the suggestion and for the first time Mr. R. realized that something was not right with his relationship with Mr. Slater. He refused and Mr. Slater took both of them home.
2. Mr. R. says that at age of 14 he was at a dance on the base at CFB Uplands. He was sitting at a table with Mr. Slater and some friends. Mr. Slater was drunk and he started crying and then he said ‘I’m gay’. Mr. R. reacted strongly to this statement and in his statement to police he indicated that Mr. Slater’s emotional breakdown made him wonder whether he was also gay.
3. During the end of year camping trip at Pineridge Park, Mr. R. alleges that Mr. Slater was in his cabin and proposed that Mr. R. commit an act of fellatio. Mr. R. refused.
4. Mr. R. testified at the preliminary inquiry that he stayed over one night at Mr. Slater’s home. Another boy was also there. Mr. Slater said that he wanted to sleep with the other boy and in fact went into the bedroom with this other boy. Mr. R. later had a conversation with the other boy about what had occurred in the bedroom. As a consequence of that conversation, Mr. R. felt guilty in that he believed he had ‘introduced’ Mr. Slater to sexual activity with adolescent boys.
5. Mr. R. makes certain references both in his police statement and in his preliminary inquiry testimony to Slater drinking or being an alcoholic. These references are not related to any of the incidents.

[13] For the reasons that follow, incidents one and three will be admissible; the remainder will not.

[14] Defence characterizes the first four areas as uncharged discreditable conduct that is presumptively inadmissible. In addition, Defence argues that the evidence cannot be admitted under any of the exceptions, in particular because the evidence relates to incidents that occurred after the allegations in the indictment. According to Defence, the last area is bad character evidence and, given Mr. Slater has not put his character in evidence, it is inadmissible.

[15] Crown argues that the first four areas of evidence all fit within the narrative exception to the presumption against admission of other discreditable conduct. With respect to the last area, they agree that comments regarding Mr. Slater drinking a lot or being an alcoholic are inadmissible, but state that they should be allowed to elicit evidence that alcohol consumption was a significant feature of the relationship between Mr. R. and Mr. Slater.

[16] Crown contends that the evidence will show that Mr. R. and Mr. Slater were in a relationship. The two allegations in the indictment are not only consensual, but Mr. R. proposes some of the activity.[^4] Crown argues that it would be difficult to evaluate his evidence without the context that these incidents provide. Crown alleges that in order for the jury to understand how Mr. R. went from a consensual relationship with Mr. Slater to eventually going to police, they will need to understand that relationship. The Crown agrees that the four incidents occurred after the allegations in the indictment. However, Crown states they are important to evaluate whether the allegations occurred at all, and if so, why Mr. R. did not disclose initially and then, why he decided to disclose when he did.

[17] As noted in R. v. F.(D.S.)[^5], uncharged discreditable conduct involving the same complainant is admissible to complete the narrative of the complainant’s relationship to the accused and to ensure that the jury is not left with an incomplete and possibly misleading impression of that relationship.[^6] It can also be admitted to demonstrate motive or animus of the accused and to support the credibility of the complainant by providing an explanation for the timing of the reporting of the allegations.

[18] In addition, courts have admitted evidence of other discreditable conduct where this evidence assists ‘the court in understanding the relationship between the parties and the context in which the alleged abuse occurred.’[^7]

[19] As part of the determination of whether such evidence should go in, it is important to assess the probative value of the evidence against its prejudicial effect.[^8]

[20] In my view, the four areas of evidence noted above form part of the narrative of Mr. R.’s relationship with Mr. Slater and that relationship is a central feature of the allegations. Without the narrative evidence, the jury would be left unable to understand why Mr. R. consented to the sexual contact, but years later went to the police. The jury will need to know how and when Mr. R. came to understand that his relationship with Mr. Slater was wrong and what he chose to do about it over the course of the years.

[21] The real issue in my opinion is the balancing of prejudicial effect against the probative value of the proposed evidence. When the evidence is examined from that perspective, certain matters become evident:

• The first incident involves a ‘proposition’ by Mr. Slater to the two boys that is ultimately refused. This incident is particularly significant as narrative since it is the first time that Mr. R. realized that his relationship with Mr. Slater might be improper. The prejudicial effect of the evidence is mitigated by the fact that it is less egregious than the allegations in the indictment and the ‘offer’ is refused. This evidence is admissible.
• Defence argues that the statement by Mr. Slater ‘I’m gay’ is not admissible because it has no probative value. They point to several cases where a Crown Attorney asked an accused whether he was gay in the context of an allegation of sexual assault and the courts made it clear that such evidence is not relevant.[^9] On the other hand, Crown argues that it is not the statement itself that is important nor do they intend to lead it for the truth of the contents; it is the entire incident of which the statement is only a small part that is significant. That incident only has meaning if the statement goes in. If it did not, both Mr. Slater’s and Mr. R.’s behaviour is inexplicable. So a balancing of probative value and prejudicial effect is important. The timing of this incident is unknown and as a result, its value as part of Mr. R.’s evolving relationship with Mr. Slater is minimal and the prejudicial effect of the comment ‘I’m gay’ is significant. In the circumstances, I find that it should not be admitted.
• The incident at Pineridge Park shares many of the same characteristics as the first incident – it is a proposition only, it is for an activity that is the same as one of the allegations but not more serious than any of the allegations, and it has significant probative value in the narrative because it marks the end of the relationship. This evidence is admitted.
• The incident at Mr. Slater’s home where Mr. R. and another boy were to stay over is highly prejudicial. The clear implication of the event is that another adolescent boy was abused by Mr. Slater. No limiting instruction could mitigate the effect of the prejudice. Furthermore, its probative value is minimal. Given the other evidence that is admitted, this evidence cannot substantially advance the narrative. This evidence is not admitted.

[22] Both Crown and Defence are in agreement that where there is evidence of drinking on the part of Mr. Slater as part of any of the particular incidents, that evidence is admissible. I agree. However, I do not agree with Crown that they should be allowed to explore the consumption of alcohol generally as part of the relationship between Mr. R. and Mr. Slater. In my view, there will be sufficient evidence of alcohol consumption as part of the incidents for the jury to understand that it was a significant feature of the relationship.

Past recollection recorded – testimony of Dr. Flewelling

[23] J.R. testified that he was sexually abused by Michael Slater when he was a student of his in grade eight. He testified that he did not disclose what had occurred until several years later when he met with a school psychologist – Dr. Robert Flewelling. He indicated that he told Dr. Flewelling what had happened and discussed what his options were in relation to Mr. Slater. The psychologist encouraged him to go to the police, but he decided instead to confront Mr. Slater. He testified that after the confrontation with Mr. Slater he felt better and that he had ‘met the concerns of his psychologist’.

[24] Mr. R. was extensively cross-examined by defence counsel, and the main thrust of the cross-examination was that his allegations concerning Mr. Slater were a complete fabrication. Among other matters, he was cross-examined about the confrontation at the school with Mr. Slater. It was suggested to him that the manner in which this confrontation occurred was highly improbable and in fact, never occurred.

[25] Crown seeks to call Dr. Flewelling as part of the narrative evidence of J.R. Defence opposes this request to call Dr. Flewelling for two reasons: first, because Dr. Flewelling has no independent recollection of counselling Mr. R. and secondly, that even if Dr. Flewelling could testify on the basis of his notes, his evidence is inadmissible as narrative.

[26] Dr. Flewelling is now retired but was a school psychologist for thirty years. He has no recollection of treating Mr. R., who he would have seen twenty-six years ago. However, as the school board keeps records, he was able to review the therapeutic notes that he made when he saw Mr. R. In those notes, Dr. Flewelling recorded that Mr. R. revealed that he had had an inappropriate relationship with a teacher. He also records that there was a discussion concerning the issue of responsibility in relation to this teacher. That entry ends with the comment ‘thinks he might approach this teacher directly in the hopes of inhibiting further activities on this person’s part’. In addition, his notes indicate that Dr. Flewelling contacted the Children’s Aid Society in order to get some advice. In his last entry, Dr. Flewelling notes that he will not be taking any active steps regarding reporting the teacher with whom Mr. R. had inappropriate contact.

Issues

[27] There are two issues to be decided. First, can Dr. Flewelling testify on the basis of past recollection recorded? Secondly, assuming that he can, is his evidence admissible as part of the narrative?

Analysis

1. Past recollection recorded

[28] Past recollection recorded allows a witness to testify concerning events of which he has no recollection, but which he recorded at the time of the event when he had an accurate recall. The classic example is that of a witness to an accident who records the licence plate of the offending car on a slip of paper as it flees the scene. Years later at the trial, the witness has no recollection whatsoever of the licence plate number, but he can state that he accurately recorded it at the time of the accident. That evidence is admissible. Furthermore, it is admissible for the truth of the contents.

[29] The principle of ‘past recollection recorded’ is considered to be an exception to the hearsay rule. As noted in Paciocco and Stuesser’s “The Law of Evidence”:

Since ‘past recollection recorded’ permits witnesses who have no personal memory of an event to rely on the contents of the record and to incorporate the contents of the record into their testimony, it is artificial to suggest that the witness is the immediate source of the evidence. The witness, who has no personal memory of the details and facts recorded, is vouching for the record, but it is the record that is supplying those details and facts.[^10]

[30] The leading case on the issue of past recollection recorded is R. v. Fliss.[^11] In that case the Supreme Court of Canada sets out four criteria for the admission of past recollection recorded:

1. The past recollection must have been recorded in some reliable way;

2. At the time, it must have been sufficiently fresh and vivid to be probably accurate;

3. The witness must be able now to assert that the record accurately represented his knowledge and recollection at the time. The usual phrase requires the witness to affirm that he “knew it to be true at the time”; and

4. The original record itself must be used, if it is procurable.[^12]

[31] In R. v. Richardson,[^13] the Ontario Court of Appeal purports to list the same four criteria set out in Fliss. Curiously, however, they use a somewhat different set of criteria. They state:

Past recollection recorded is a well-established exception to the hearsay rule. Although the test has been described in different language over the years, the essential conditions for admissibility are as follows:

1. Reliable record: The past recollection must have been recorded in a reliable way. This requirement can be broken down into two separate considerations: First, it requires the witness to have prepared the record personally, or to have reviewed it for accuracy if someone else prepared it. Second, the original record must be used if it is available;

2. Timeliness: The record must have been made or reviewed within a reasonable time, while the event was sufficiently fresh in the witness’ mind to be vivid and likely accurate;

3. Absence of memory: At the time the witness testified, he or she must have no memory of the recorded events; and

4. Present voucher as to accuracy: The witness, although having no memory of the recorded events, must vouch for the accuracy of the assertions in the record; in other words, the witness must be able to say that he or she was being truthful at the time the assertions were recorded.[^14]

[32] While similar, these criteria are not the same and leave the issue of what criteria to use somewhat in doubt.

[33] Of importance is the fact that because this principle is an exception to the hearsay rule, it is an exceptional procedure and the criteria must be strictly met.[^15] The rationale behind strict compliance is that unlike the situation where the witness’ memory has been refreshed and he or she can be cross-examined on it, where the testimony is a past recollection recorded, the document or record essentially becomes the evidence and no effective cross-examination can occur because the witness has no independent recollection.[^16]

Application to present case

[34] In general, this exception to the hearsay rule is used where witnesses have recorded events or conversations or made observations and subsequently have no clear memory of them. Defence counsel made reference to two cases of such a nature where police officers were not permitted to testify based on their notes. In both cases, the evidence was proffered for the truth of its contents. Also in both cases, the court found that the notes did not meet the third criteria set out in Fliss as the witness could not assert that the notes accurately reflected the actual conversations that they were present for and heard.[^17]

[35] These cases are not particularly helpful for two reasons: first, police officers have legal obligations regarding note-taking that do not exist for witnesses in general and second, the conversations to which the officers were testifying were going in for the truth of their contents.

[36] Crown is seeking to admit portions of Dr. Flewelling’s notes under the narrative exception to prohibition against the admission of prior consistent statements. Consequently, the notes are not going in for the truth of the contents. Defence argued that the notes were nonetheless hearsay because the notes were the evidence and they were being introduced by a witness who could not recall the events contained in the notes. While I agree that this is the reason why the principle of past recollection recorded is considered to be an exception to the hearsay rule, I disagree that in the specific circumstances of this case the notes are hearsay. They are not because they are not going in for the truth of their contents.

[37] In the present case, Dr. Flewelling is to be called solely for the purpose of corroborating Mr. R.’s testimony that he disclosed sexual abuse to the psychologist, discussed options available to him and decided to confront Mr. Slater. He will not – and indeed cannot – assist the court with whether the allegations themselves are true. It is in this context that the criteria for admission of past recollection recorded will be assessed.

Reliability

[38] Dr. Flewelling testified that as part of his practice he kept notes of the counselling sessions and also filled out forms required by the school board. The counselling notes were hand-written on foolscap; the forms were also hand-written. He reviewed all the material in relation to counselling Mr. R. and was able to confirm that it had been prepared by him. He recognized his handwriting and in some cases, his signature. He indicated that the notes were made as part of his professional responsibility. They were made primarily as an aide-memoire, but could also be used by subsequent treating psychologists. The forms that he filled out were done for the school board and were a record of work done, action taken or required to be taken and for statistical purposes. The forms generally contained information of a less personal or sensitive nature than the foolscap notes of the actual counselling sessions.

Timeliness

[39] Dr. Flewelling could not advise the court when specific notes had been made. He indicated that it was his general practice to make notes either during or immediately after counselling sessions and at the latest within the week. In the body of some of the notes, it is apparent from the notes themselves that they were made during or immediately after the session.

Voucher of accuracy

[40] Dr. Flewelling indicated that the point of making notes was to make an accurate record and that his memory at the time of making the notes would have been fresh. Not all of whatever was discussed would necessarily appear in the notes. He would make notes of important matters so as to refresh his memory later. The words used in the notes could be a verbatim recording of what the student said, a summary of what was said or an observation made by the doctor. Occasionally, he would use quotation marks to indicate a verbatim note, but the lack of quotation marks did not necessarily mean the comment was not verbatim. Dr. Flewelling also stated that sometimes the content of the note itself could reveal whether it was a statement made by the student or a comment made by him. In reviewing the notes in court, Dr. Flewelling was able to identify certain statements as having been made by Mr. R. He stated that all of the notes regardless of whether they were statements, comments or observations were accurate at the time they were made.

Original documents

[41] This criterion is not an issue. The notes referred to by Dr. Flewelling were photocopies taken of original school board records and the originals were returned to the school board as soon as the photocopies had been made. When he initially reviewed the notes, Dr. Flewelling used the originals.

[42] The main thrust of the defence argument concerned the third criterion – whether Dr. Flewelling could legitimately vouch for the accuracy of the notes. Counsel pointed to the fact that the notes were not a complete record of what was said and that Dr. Flewelling could not say definitively who said what in the notes or indeed, what a particular comment might mean.

[43] I would have had a great deal more sympathy for this argument if the notes were to be tendered for the truth of their contents. As they are not, I find that this issue is more one of weight than admissibility. In addition, the specific portions that Crown wishes to put into evidence relate exclusively to the information that Mr. R. provided that he had had a sexual relationship with a teacher. There is no ambiguity. The notes reflect either information provided by Mr. R. or actions (or non-actions) taken by Dr. Flewelling.

[44] In my view, the evidence meets the criteria set out for past recollection recorded and Dr. Flewelling may testify concerning those notes.

2. Narrative exception

[45] The next issue to determine is whether the Dr. Flewelling’s evidence can be received as narrative.

[46] Mr. R. has testified that the first disclosure that he made concerning the allegations of sexual abuse was to Dr. Flewelling. He stated that he discussed his options with Dr. Flewelling and decided to confront Mr. Slater. The impetus to confront Mr. Slater arose out of his discussions with the psychologist.

[47] Crown argues that Dr. Flewelling’s evidence serves to explain Mr. R.’s actions, specifically his decision to confront Mr. Slater instead of going to the police. It can also serve to explain the lack of action on the part of the school authorities as represented by Dr. Flewelling. Defence counsel counters that the evidence does not meet the requirements of narrative and even if it does, its probative value is so low that it is inevitably outweighed by its prejudicial effect.

[48] In R. v. J.E.F.[^18]., the Ontario Court of Appeal dealt with the use that could be made of prior consistent statements in the context of historical sexual assault allegations. The court reviewed the effect of the abrogation of the rule regarding recent complaint and then went on to note that evidence of recent complaint is nonetheless admissible if it fits within an exception to the prohibition against admission of prior consistent statements. The court noted with respect to narrative that:

It seems to be that the court should look to narrative as an exception to the rule against the admission of previous consistent statements for a more hopeful approach to this vexing problem of the evidence of children in sexual assault cases. It must be a part of the narrative in the sense that it advances the story from offence to prosecution or explains why so little was done to terminate the abuse or bring the perpetrator to justice.[^19]

[49] This definition of what constitutes narrative evidence was reiterated by the Court of Appeal in R. v. A.E.R.[^20] They then went on to add:

The prior statements must be an essential part of the narrative in order to be admitted and are only admissible for the purpose of understanding the witness’ story. The evidence is not admissible for the truth of what the witness is now saying. Also, the evidence of prior consistent statements should only described in general terms and should not contain much detail as details of the statements would invite the trier of fact to conclude that the witness must be telling the truth by reason of the apparent consistency with the witness’ testimony.[^21]

[50] Defence counsel places a great deal of weight on the use of the term ‘essential’ in the above quote. Their argument is that unless the evidence is absolutely necessary to the Crown’s case, it cannot be admitted. I do not read the A.E.R. case as setting such a high bar to admissibility. Certainly none of the other cases that were referred to me indicated that the test was one of ‘absolute necessity’. Instead the emphasis is on the fact that the evidence may assist the jury to understand how (or why or when) a complainant’s story was first disclosed.[^22]

Application to the present case

[51] In the present case, Crown argues that this evidence is necessary to explain why Mr. R. chose to confront Mr. Slater when he did and why neither he nor Dr. Flewelling went to police at that time. They also contend that the evidence serves to corroborate Mr. R.’s testimony that he went to confront Mr. Slater in order to satisfy his psychologist’s concerns, a decision that otherwise might seem odd. I agree that this evidence serves this purpose.

[52] Defence counsel’s last point was that the proposed evidence is too unreliable to be probative and inevitably therefore, is prejudicial. In my view, Dr. Flewelling’s notes are sufficiently reliable to be used for the limited purpose for which they are proffered – to explain both Mr. R.’s actions and Dr. Flewelling’s actions.

[53] Consequently, Dr. Flewelling may testify as follows:

• Mr. R. disclosed abuse by a teacher;
• They discussed Mr. R.’s options;
• Mr. R. decided to confront the teacher;
• He called CAS but did not provide them with any specific information;
• He told Mr. R. that he had made that telephone call; and
• He did nothing further given Mr. R.’s age.

[54] There will, of course be a limiting instruction given to the jury regarding the use they can make of this evidence.

Recent fabrication

[55] As a consequence of certain questions and answers put to K.B., Crown requests that they be permitted to call his wife, G.B. Crown alleges that the effect of the cross-examination of K.B. has implicitly raised an allegation of recent fabrication.

[56] K.B. alleges that he was sexually assaulted by Michael Slater when he was in Mr. Slater’s grade seven or eight class. The first person to whom he disclosed was his current wife. He disclosed to her in approximately 1974-76. However, he did not go to the police until 2009 at which point he gave several statements. During the course of this trial, the complainant has been cross-examined on three main points: first, that he has made numerous significant errors in outlining the timing and location of the alleged assaults; second, that there are significant inconsistencies between his various statements to police and his testimony; and finally, that his memory is so poor that his testimony as a whole is unreliable.

[57] It is with respect to this third area of cross-examination that Crown alleges the issue of recent fabrication has arisen. During the course of the cross-examination, the following exchange occurred:

Q. And I’m going to suggest to you that it’s not in there because either you didn’t recall it or you deliberately left it out?

A. I think I probably didn’t recall it at the time that I was making this, typing this up.

Q. So you’ve got issues with your memory, sir?

A. I would say that is accurate because I actually underwent a memory test at the General Hospital on Friday.

Q. What was that test for?

A. It was for whether I could remember, if I could identify certain animals, if I could remember 10 words and recite them a minute or two later. The test also involved mathematical skills. I, I did very well on most of the test. I did not do well on the recall of the 10 words. I could only remember two.[^23]

[58] Defence counsel asked a few clarifying questions in relation to the test, but did not otherwise refer to the test again in her cross-examination. On the other hand, she continued to ask questions relating to the quality of the complainant’s memory.

[59] Crown alleges that the effect of the approach taken by Defence in criticizing the quality of the complainant’s current memory of events, compounded by his admission that his memory has recently deteriorated to the point that a memory test was felt by his doctor to be necessary, is that Defence has implicitly raised the issue of recent fabrication. In order to rebut that allegation, they wish to call G.B. At the time that Mr. K.B. disclosed to his wife he did not have any memory problems.

Analysis

[60] Prior consistent statements are presumptively inadmissible.[^24] The basis for this rule is the principle that the probative value of the evidence – whether the truth or a lie – is not enhanced by mere repetition.[^25] On the other hand, consistency can be relevant to memory. An earlier version of a statement can assist the trier of fact in assessing whether the current version of events is the product of an inaccurate memory.[^26] However, in order for a party to be able to use a prior consistent statement to rebut the suggestion that the witness’ current testimony is faulty, there must be an event that has given rise to the problem. As noted in R. v. Ellard,[^27]

A mere contradiction in the evidence is not enough to engage the recent fabrication exception (…) To rebut an allegation of recent fabrication, it is necessary to identify statements made prior to the existence of a motive or of circumstances leading to fabrication. In all cases, the timing of the prior consistent statements will be central to whether they are admissible.[^28] [emphasis added]

[61] An allegation of recent fabrication need not arise explicitly. In R. v. Campbell,[^29] the Ontario Court of Appeal stated,

I accept the proposition that an express allegation of recent fabrication in cross-examination is not necessary before the exception, with respect to rebutting an allegation of recent fabrication, becomes operative, and that a suggestion that the accused's story has been recently contrived may also arise implicitly from the whole circumstances of the case, the evidence of the witnesses who have been called, and the conduct of the trial. Where the circumstances are such as to raise the suggestion that the accused's evidence is a recent fabrication, counsel may properly anticipate the allegation of recent fabrication in cross-examination, and examine the accused in chief with respect to previous statements to other persons, prior to his being cross-examined.[^30] [citations omitted; emphasis added]

[62] A general challenge to the complainant’s credibility based on the suggestion that his entire testimony is a fabrication will not give rise to an allegation of recent fabrication.[^31] What is critical is that the fabrication arises as a result of an event or circumstances that occurred after the allegations about which the witness is testifying. If that occurs, then a consistent statement made before the event or circumstances, but after the time period of the allegations, becomes relevant.[^32]

[63] In the present case, the focus of the cross-examination has been the complainant’s memory of events as set out in the various statements that he made to police starting in 2009. Effectively, Defence has alleged that the complainant’s present memory of events that occurred more than forty-five years ago is so inherently flawed that it cannot be relied upon. This situation in combination with the suggestion by Defence that the complainant’s memory is poor and his response that indeed his present memory is so flawed that he had to undergo a memory test leads to the inference that the memory problems that he is experiencing are the result of a recent deterioration in his ability to recall events accurately.

[64] Therefore, the triggering event or circumstance in this case is the recent deterioration of the complainant’s memory. It follows that a prior consistent statement made well before Mr. K.B’s current memory problems is relevant to rebut the implicit suggestion that his statements are a fabrication due to his present memory deficits. The following exchange is an example among many of this approach to the cross-examination:

Q. And I’m going to suggest to you the reason you don’t have a good memory of these claims of sexual abuse is that they never happened?

A. I do not agree with you.[^33]

[65] Defence may not have intended this consequence to arise as a result of her questions, but unfortunately, it did.

[66] Consequently, in my view Crown can lead the complainant’s wife’s evidence that at a time period much closer to the alleged sexual assault and before the complainant’s ability to recall deteriorated, he advised her that the accused sexually assaulted him. A limiting instruction will be required to ensure that the jury uses the statement appropriately and that they understand that the statement cannot be used for the truth of its contents, merely for the fact that it was said.

Madam Justice Julianne A. Parfett

Released: March 10, 2014

COURT FILE NO.: CR-11-5008 DATE: 2014/02/10

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

MICHAEL GRANT SLATER

RULINGS ON EVIDENTIARY MATTERS

Parfett J.

Released: March 10, 2014

[^1]: R.S.C. 1985, c. C-46, as amended. [^2]: R. v. Lewis (1968), 1968 830 (BC SC), 67 W.W.R. 243 (B.C.S.C.), at para. 5; Cornerstone Co-operative Homes Inc. v. Spilchuk et al. (2004), 2004 32328 (ON SC), 72 O.R. (3d) 103 (Sup. Ct. J.), at para. 16; Alan Bryant, Sidney Lederman & Michelle Fuerst, The Law of Evidence in Canada, 3d ed. (Markham, ON: LexisNexis Canada Inc., 2009) at para. 16.111. [^3]: Cornerstone, supra note 2 at para. 16. [^4]: Several references will be made to the ‘consensual’ nature of the alleged sexual relationship between J.R. and Slater. However, J.R. was under the age of legal consent for the activity. [^5]: (1999), 1999 3704 (ON CA), 43 O.R. (3d) 609 (C.A.). [^6]: Ibid. at paras. 19 & 22. [^7]: Ibid. at para. 20. [^8]: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55. [^9]: R. v. Taylor (1982), 1982 2160 (ON CA), 35 O.R. (2d) 738 (C.A.), at para. 13. This case is cited with approval in R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345, at para. 53; see also R. v. Gratton (1995), 1995 1890 (ON CA), 101 C.C.C. (3d) 479 (Ont. C.A.), at para. 4. [^10]: David Paciocco & Lee Stuesser, The Law of Evidence, 5th ed. (Toronto: Irwin Law Inc., 2008) at p. 421. [^11]: 2002 SCC 16, [2002] 1 S.C.R. 535. [^12]: Ibid. at para. 63. [^13]: (2003), 2003 3896 (ON CA), 58 W.C.B. (2d) 482 (Ont. C.A.). [^14]: Ibid. at para. 24. [^15]: Fliss, supra note 11 at para. 64. [^16]: R. v. Pilarinos and Clark, 2002 BCSC 798, 55 W.C.B. (2d) 299, at para. 12. [^17]: R. v. Zimolag, unreported decision of Devine, J. Provincial Court of Manitoba dated February 17, 2000. See also Pilarinos, ibid. [^18]: (1993), 1993 3384 (ON CA), 85 C.C.C. (3d) 457 (Ont. C.A.). [^19]: Ibid. at para. 33. [^20]: (2001), 2001 11579 (ON CA), 156 C.C.C. (3d) 335 (Ont. C.A.). [^21]: Ibid. at para. 15. [^22]: R. v. M.T., 2012 ONCA 511, 289 C.C.C. (3d) 115, at para. 65. [^23]: Transcript of trial proceedings, February 4, 2014, at p. 37. [^24]: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5. [^25]: R. v. D.O.L. (1991), 1991 2714 (MB CA), 6 C.R.(4th) 277, at 309 (Man. C.A.), rev'd on other grounds, 1993 46 (SCC), [1993] 4 S.C.R. 419. [^26]: Paciocco & Stuesser, supra note 10 at 488. [^27]: 2009 SCC 27, [2009] 2 S.C.R. 19. [^28]: Ibid. at para. 33. [^29]: (1977), 1977 1191 (ON CA), 17 O.R. (2d) 673 (C.A.). [^30]: Ibid. at para. 47. [^31]: R. v. O’Connor (1995), 1995 255 (ON CA), 25 O.R. (3d) 19 (C.A.), at para. 14, application for leave to appeal dismissed, [1995] S.C.C.A. No. 460. [^32]: Campbell, supra note 29 at para. 52. [^33]: Transcript of trial proceedings, February 4, 2014, at p. 47.