COURT FILE NO.: CrimJ(P) 305/14
DATE: 2015 06 10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Christina Sibian, for the Crown
- and -
D.D.
Misha Feldmann, for the Defence
HEARD: May 25, 26, 2015
and June 9, 2015
RULING
ADMISSIBILITY OF LETTER
FAIRBURN J
Overview
[1] D.D. was charged with five offences: two counts of sexual assault; two counts of uttering a death threat; and one count of assault. His trial commenced with pre-trial motions on May 25, 2015. The jury was selected on May 26, 2015. The jury returned verdicts of guilty in respect to four of the charges on June 2, 2015. D.D. was acquitted on the assault count.
[2] Two pre-trial motions preceded jury selection. So as not to delay the trial, I gave brief oral rulings in respect of both matters. One of the applications related to the admissibility of a letter purported to have been authored by D.D. The letter was given to the complainant by D.D.’s sister, C.D., while he was in custody awaiting bail on these charges. I ruled the letter admissible subject to submissions on editing. These are my written reasons for doing so.
Factual Background
[3] For the most part, the following facts are gleaned from a statement taken from the complainant on May 5, 2014. The statement formed part of the Crown’s application record.
[4] D.D. and Ms. W. met at a gas station in December 2012. At the time, he was living in his sister’s basement. D.D. and Ms. W. started seeing each other in January 2013. Ms. W. soon learned that D.D.’s sister wanted him out of her house. C.D. begged Ms. W. to allow her brother to move into Ms. W.’s place. Ms. W. eventually agreed and he slowly began the process of bringing his belongings to her residence where she lived with her teenage son. This moving process was not completed until April of 2013.
[5] Once living in Ms. W.’s home, D.D. started smoking marijuana inside the residence. He also drank excessive amounts of alcohol. D.D. would get so drunk that he would pass out in the washroom and he would have to be picked up and taken to bed. D.D. would also lie half-naked on the couch with alcohol bottles and beer cans around him.
[6] Ms. W. quickly concluded that she did not want D.D. living with her. She asked him to leave and find a new place to live, but said that he could stay until the end of April. On April 29 and May 1, 2013, D.D. sexually assaulted Ms. W. On May 1, 2013, he also threatened to kill Ms. W. and her son, T.R. (When I heard this application he was only alleged to have committed these offences.)
[7] Shortly after the death threats, D.D. was arrested. I was informed on the motion that he was held in custody between May 1 and 22, 2013. Sometime during the month of May, C.D. called Ms. W. and told her that she had received a letter from her brother for Ms. W. C.D. read the letter to Ms. W. C.D. was crying, saying that D.D. still loved Ms. W. C.D. later provided the actual letter to Ms. W. There is no dispute that she did so. Following the preliminary inquiry on May 5, 2014, Ms. W. provided the letter to the police.
[8] The words of the letter that follow are as they stand in the original. I have forgone the use of [“sic”].
My dearest Love
I am so sorry for not seeing things the way you tried to show me. I have always been so used to doing my way instead of listening to reason. I never wanted to make you sad, nor do I want to loose you either. When I leave this horrible place my drinking days will be over. Sitting here in jail I have had lots of time to think about what a special person I have in my life. Its now 7:30 PM and we are locked in our cells like animals, which really sucks. I spoke to my friend Paul today, he told me how sad you are and how much you loved me. [heart shape omitted] Please don’t be sad this is my wake up call. 1 I will remember for the rest of my life. I realize now all you were trying to do was to make me a healthy hubby, I should of listened to you, instead of my own selfish ways. Just so you know, I do love you more than N E 1 before you. Its morning now, and once again I woke up without you beside me, this makes me extremely sad. [sad face omitted] If there is one thing I know now is that god brought us together and this intervention will bring us closer than before. I never meant to hurt you in N E WAY. My dumb judgement got the better of me. I prayed to god to never allow this to happen again. Just so you know, I never dropped the soap in here LOL. [three smiley faces omitted] My love you are my heart my Soulmate and my destiny. I hope when I am released from here our love will be stronger than ever. I lost everything in my life, but I do not want to loose you. When I made love to you I did not mean to be so ruff. I am truely sorry and I am seeking help for my drinking and emotional issues, Turn the page this is how much I love you. TURN Page. [arrow to the right omitted]
[9] The next page includes a “mmmmmmmmmuuuuuuuuuuuuaaaaaaaaaaaaaa”. Then an entire page of xo’s follow. Every line is covered in them, but for the centre of the page which contains a large heart and the words “FOREVER N EVER”. The letter is signed: “Love You Hubby”.
Positions of Counsel
[10] The Crown takes the position that the letter is admissible as post-offence conduct. She argues that its probative value outstrips its prejudicial effect. The Crown argues that the letter goes to the actus reus and mens rea for the offences. She also argues that it is part of the narrative, goes to credibility and absence of consent and, should it arise, serves to rebut the defence of honest but mistaken belief in consent.
[11] In oral argument, Crown Counsel also took the position that the letter is presumptively admissible as D.D.’s statement. The Crown intends to lead the letter through Ms. W., who will testify to the fact that she received the letter from the accused’s sister and to why she believes the letter to be written by him.
[12] Defence counsel advances two arguments in response. Firstly, he argues that the Crown is unable to establish the provenance of the letter. It appeared a year after it is purported to have been written and, while the contents of a letter could theoretically assuage concerns about provenance, the contents here are simply insufficient to point toward D.D. as the author of the letter. It is unsigned and undated and should not be admitted because we do not know who authored the letter.
[13] Defence counsel’s second argument is that the probative value of the letter is outstripped by its prejudicial effect. The jury may see the letter as a confession by D.D., particularly the following line: “When I made love to you I did not mean to be so ruff.” This could be the first thing the jury hears from D.D. in the trial, and the potential inference that could be drawn from this line – that D.D. is confessing to a sexual assault – is too prejudicial.
[14] Quite fairly, defence counsel conceded that the bad character aspects of the letter could be cured with an appropriate remedial instruction.
The Law Related to Post-Offence Conduct and Admissions of an Accused
[15] Post-offence conduct is a legal term of art that replaced its predecessor, “consciousness of guilt”: R. v. White, [1998] 2 S.C.R. 72, [1998] S.C.J. No. 54 [White (1998)] at para. 20. The latter term was discarded because, as explained by Major J. in White (1998), “consciousness of guilt” is only “one inference that may be drawn from the evidence of the accused’s conduct; it is not a special category of evidence in itself”. Post-offence conduct is simply another form of circumstantial evidence: R. v. Figueroa, 2008 ONCA 106, 232 C.C.C. (3d) 51 [Figueroa] at para. 33.
[16] It is not fundamentally different than other forms of circumstantial evidence, the admissibility of which is governed by rules of relevance and materiality. As Binnie J. put it in R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433 [White (2011)] at para. 140: “Where it is put forward as an element of the prosecution’s case, it will, of course, be relevant and admissible where it has some tendency, as a matter of logic, common sense and human experience (as the expression goes) to help resolve a live issue in the case”. See also: R. v. Cornelius, 2011 ONCA 551 [Cornelius] at para. 19.[^1] Of course, even where the conduct is relevant and material, the trial judge may still, in an exercise of his or her discretion, exclude the evidence if its prejudicial impact outstrips its probative value: White (2011), at paras. 31, 47, 50, 140.
[17] With the shift in nomenclature, moving from the expression “consciousness of guilt” to “post-offence” or “after-the-fact conduct”, some confusion may have been injected into the jurisprudence. It is not everything that occurs after an offence that is properly captured by the expression post-offence conduct. While the change in jargon may have led to the impression that anything done by an accused after an offence should be subject to a special rule, “[t]his is not the case”: White (2011) at para. 21; R. v. Turcotte, 2005 SCC 50, [2005] 2 S.C.R. 519 [Turcotte] at para. 37.
[18] This case demonstrates that reality. The statement at issue here is a letter alleged to be sent by D.D. to Ms. W. shortly after the offences occurred. If D.D. is the author of the letter, it is an admission and, assuming relevance and materiality, presumptively admissible under the law. The rationale for the rule of presumptive admissibility in respect of an accused’s prior statements, “rests on the theory of the adversary system that what a party has previously stated can be admitted against the party in whose mouth it does not lie to complain of the unreliability of his or her own statements”: R. v. Evans, [1993] 3 S.C.R. 653 [Evans] at para. 26; R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544 [Hart] at para. 63.
[19] As it relates to admissions by a party litigant, whether made before or after a crime, it has been a long-standing rule that they can be tendered into evidence without the need to meet the criteria of necessity and reliability under the principled approach to hearsay: R. v. Foreman (2002), 166 O.A.C. 60, 169 C.C.C. (3d) 489 [Foreman] at para. 37; R. v. Osmar, 2007 ONCA 50, 84 O.R. (3d) 321 [Osmar] at para. 53. The presumptive admissibility of an accused’s statements to people not in authority rests on an understanding that these statements are not hearsay or, if they are, they constitute a clear exception to the hearsay rule. As noted by Sopinka J. in Evans at para. 28: “… it is open to dispute whether the evidence is hearsay at all”. See also: R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358 [Mapara] at para. 20. More recently, Moldaver J. referred to the doctrine as “the party admissions exception to the hearsay rule”: Hart at para. 63. Either way, statements by accused that do not trigger the voluntariness doctrine are admissible, provided they are relevant and material.[^2]
[20] Relevance is established where, as a matter of law and experience, the evidence supports proof of a proposition advanced. The evidence only has to make the fact sought to be established “slightly more or less probable” in order to hit the relevance threshold: R. v. Luciano, 2011 ONCA 89 [Luciano] at para. 204. Relevance is assessed against the backdrop of the entire case, including the submissions of counsel. Evidence is material if it is “directed at a matter in issue in the case”: R. v. Collins, 150 O.A.C. 220 at para. 18 [Collins].
[21] Of course, even when it comes to an accused’s previous statements, just like the post-offence conduct doctrine, a trial judge always has an overriding discretion to exclude evidence where the prejudicial impact of the evidence outstrips its probative value. As noted by McLachlin J. (as she then was) in Terry, “[a]n admission against interest made by the accused is admissible as a recognized exception to the hearsay rule, provided that its probative value outweighs its prejudicial effect”: R. v. Terry, [1996] 2 S.C.R. 207, [1996] S.C.J. No. 62 [Terry] at para. 28; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 [Starr] at para. 43; Hart at para. 65.
The Law Applied to the Facts
[22] The letter that forms the subject of this application is clearly relevant and material to the facts in dispute at trial. At the time of the application, D.D. was alleged to have both assaulted and sexually assaulted Ms. W. The letter is an apology for things, including “ruff” sex.
[23] It is also an apology for his “drinking and emotional” issues. Given the domestic context in which these allegations are made, D.D. and Ms. W.’s relationship will form part of the backdrop for the alleged offences at trial: R. v. F.(D.S.) (1999), 43 O.R. (3d) 609 (C.A.) at para. 22. This evidence will permit the jury to assess Ms. W.’s evidence against that context. The context includes D.D.’s frequent state of intoxication, drug use, physical assaults, and verbal abuse. The letter is relevant to that context.[^3] It supports the contextual – F.(D.S.) – type evidence led by the Crown. If the letter is authored by D.D., it is an acknowledgment by him that he was difficult for many of the same reasons articulated by Ms. W.
[24] In addition, depending on how the trier of fact approaches the evidence, it includes a near-confession: “When I made love to you I did not mean to be so ruff. I am truly sorry and I am seeking help for my drinking and emotion issue”. On one interpretation, it is an apology for committing the crime(s): R. v. T.(S.G.), 2010 SCC 20, [2010] 1 S.C.R. 688 [T.(S.G.)] at para. 20. It is highly relevant and material. It goes to both the actus reus and mens rea for sexual assault.
[25] As for the defence argument that its prejudicial impact outstrips its probative value, D.D. suggests that if the letter goes in it will be the first time the jury hears from him. If they consider the “ruff” sex line to be a confession, this would be highly prejudicial. With respect, this submission carries no weight. Admissions against interest are almost always led in the Crown’s case before the jury hears from the accused.
[26] Even if the jury were to determine that the “ruff” sex comment in the letter is a confession, this finding would not transform it into prejudicial evidence. Importantly, the fact that a piece of evidence is highly probative does not make it prejudicial. These concepts do not enjoy a necessarily symbiotic relationship. Prejudice arises not from probity, but from the risk that the trier of fact, even if properly instructed, will make improper use of evidence: R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239 at para. 111; Collins at para. 19.
[27] Here, the defence correctly and responsibly conceded that an instruction respecting prior disreputable conduct could address any risk that might arise from prejudicial aspects of the letter.
[28] I find that the impugned letter is an admission, relevant, material, and probative. Any prejudicial impact can be assuaged through editing and a warning about discreditable conduct, which the jury will have to receive in any event, seeing as the evidence respecting the context for the relationship is going in.
[29] This leaves one issue. Is the admission that of D.D.?
The Law Related to Authenticity
[30] In order to be admissible, a threshold determination must be made as to authorship. The letter is purported to be written by D.D. In order to be admitted, there must be some basis to support this contention. This evidence must point to the accused as the declarant.
[31] It is important not to conflate the standard for admission with the standard a jury must apply when considering a prior statement. A trial judge presiding over a jury trial must only decide if there is enough information pointing toward the accused as the declarant to leave the document for the jury’s consideration. In making the preliminary determination as to whether the statement should be left with the jury, the trial judge must determine, on a balance of probabilities, that the accused made the statement. Justice Sopinka put it this way in Evans at para. 36:
If there is some evidence to permit the issue to be submitted to the trier of fact, the matter must be considered in two stages. First, a preliminary determination must be made as to whether, on the basis of evidence admissible against the accused, the Crown has established on a balance of probabilities that the statement is that of the accused. If this threshold is met, the trier of fact should then consider the contents of the statement along with other evidence to determine the issue of innocence or guilt. While the contents of the statement may only be considered for the limited purpose to which I have referred above in the first stage, in the second stage the contents are evidence of the truth of the assertions contained therein.
[32] In other words, to admit the evidence, I must find on a balance of probabilities that the letter was authored by D.D.: Evans, at p. 668; R. v. Sandham, [2009] O.J. No. 4527 (S.C.J.), 85 W.C.B. (2d) 492 at paras. 13-15; R. v. Moazami, 2013 BCSC 2398 at paras. 11-13, 18; R. v. Cater, 2012 NSPC 15, at paras. 4-6; R. v. H.(L.), 2008 SCC 49, [2008] 2 S.C.R. 739 at para. 70.
[33] I am satisfied on a balance of probabilities that the letter meets this threshold of admissibility. While he did not sign the letter “D.D.”, he signed it “You Hubby”. It was written to “My dearest Love”. It is not in dispute that D.D. and Ms. W. were in a relationship and living together at the time. The letter appears to be written by someone who is in jail or, at a minimum, someone who is involuntarily away from their partner. It is not disputed that D.D. was in jail at the time the letter materialized. The letter references the author’s drinking issues. It is not disputed that D.D. had serious drinking problems and, in fact, this was a constant source of tension between him and the complainant.
[34] Although I did not know it at the time of the application, the complainant testified at trial that she would refer to D.D. as “hubby”. Also at trial, through cross-examination of the complainant, numerous text messages between the accused and complainant were acknowledged. It would appear from those texts that the accused had a penchant for punctuating some text messages with multiple xo’s. While I do not rely on these post-application facts to come to my conclusion on admissibility, they support the letter’s authenticity.
[35] I am satisfied on a balance of probabilities that D.D. is the author of the letter. It should be left for the jury to determine, if they accept he is the author of the letter, what weight they put on the letter having regard to all of the evidence in the case.
Conclusion
[36] The letter is admissible. Despite this fact, both counsel acknowledged that there are prejudicial aspects to the letter. While those prejudicial aspects can be addressed by instructions to the jury, they might also benefit from editing of the letter. I left it to counsel to determine if they could come to an agreement with respect to edits. As they did with other aspects of the trial, they undertook this process responsibly and professionally. They returned with an edited document that was ultimately admitted into evidence.
FAIRBURN J
Released: June 10, 2015
COURT FILE NO.: CrimJ(P) 305/14
DATE: 2015 06 10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
D.D.
RULING
ADMISSIBILITY OF LETTER
FAIRBURN J
Released: June 10, 2015
[^1]: In White (2011), while Binnie J. was writing for himself and two others in dissent, his legal analysis was adopted by Charron J., writing for herself and Deschamps J. As such, the Binnie J. judgment forms the majority view in White (2011) as it relates to the legal principles pertaining to post-offence conduct. See: Cornelius, at para. 19, for a summary of these important principles.
[^2]: The voluntariness doctrine is triggered where the accused gives a statement to a person who he or she knows to be an authority figure. When this occurs, a presumption of inadmissibility is triggered until such time as the Crown proves the voluntariness of the statement beyond a reasonable doubt: R. v. Hebert, [1990] 2 S.C.R. 151, [1990] S.C.J. No. 64 [Hebert]; R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27; R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 [Oickle].
[^3]: I note that, while I did not appreciate it at the time of the application, it became clear to me as the trial proceeded that the defence used this context evidence to advance a theory that the complainant had fabricated the allegations on the indictment in an effort to get D.D., an admittedly difficult person, out of her home when he would not leave voluntarily.