ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-11-4854

DATE: 2015-11-18

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

NOOR KHAN

Appellant

John McInnes, for the Crown

David Butt, for the Appellant

HEARD: November 10, 2015

On Appeal from the Judgment of The Honourable Mr. Justice B. Frazer
dated October 10, 2014

VALLEE J.

Nature of the Appeal

[1] Mr. Khan was convicted of sexual assault and sentenced to 45 days of incarceration. He appeals his conviction on three grounds:

a) the trial judge made in error in law when he incorrectly admitted into evidence a statement that was a prior consistent statement;

b) the trial judge failed to take into account certain inconsistencies in the complainant’s accounts of the physical searches that the appellant carried out after arrest; and

c) the trial judge failed to give sufficient weight to the fact that the complainant lied about not having consumed cocaine when she was pulled over by the police in her car.

[2] The appellant states that the trial judge made an error in principle. Given the appellant’s unique circumstances, a departure from the appropriate range was justified.

Applicable Law

[3] Prior consistent statements are presumptively not admissible. A witness’s evidence at trial maybe the same as what that witness said at the time of the event; however, this does not mean that the witness is more likely to be telling the truth. Admission of both a prior consistent statement as well as a witness’ similar testimony at trial can lead a fact-finder astray, to conclude that the witness’ credibility is enhanced. (see R. v. Danardo (sp), 2008 SCC 24, 2008 S.C.C. 24, para. 36)

Evidence at Trial

[4] The complainant was searched incident to arrest. She stated that Officer Khan searched her three times. She regarded the first two searches as routine. The complainant stated that en route to police station, Officer Khan pulled over the cruiser and got out, leaned into the back seat and with either his fingers or a flashlight pulled her top away from her body and shone the flashlight into her chest area. This was the third search. She viewed this as inappropriate.

[5] After her arrival at the station, she was taken into a room where Constable Flint, a woman, told her that she would be performing a search. The complainant objected and stated that she had already been searched three times and did not understand why a fourth search had to be done. After she stated this to Constable Flint, the complainant was interviewed about the three searches. As a result of her description of the third search, Officer Khan was charged with sexual assault.

[6] At trial, the complainant gave evidence about her interaction with Constable Flint and what she said about the perspective fourth search. Constable Flint appeared at trial and also gave evidence as a witness. After a voir dire in which the trial judge ruled that the previous consistent statement was admissible, Constable Flint testified about the statement.

[7] In his Reasons, the trial judge gave considerable weight to the prior consistent statement and stated that it supported the complainant’s credibility and “the consistency of her complaint.” The trial judge also stated, “the spontaneity of that statement is compelling and also assists the court in determining the overall credibility in a positive way.” The trial judge found that the complainant was credible for four main reasons, one of which focused on the prior consistent statement.

The Respondent Crown’s Position

[8] The trial judge found the complainant to be credible not because her evidence at trial was repeated in the prior consistent statement but because it added something else, namely evidence of her demeanor when she made the statement. Constable Flint stated that the complainant was perplexed and bewildered when she made the statement. This is most important aspect of the prior consistent statement. The statement was made in circumstances that give it additional value. The trial judge found that the statement was spontaneous which gave it a stamp of reliability. (Both parties agreed that the prior consistent statement was not technically a spontaneous utterance because the complainant was not emotionally overpowered when she made it.)

[9] The trial judge commented on the prior consistent statement as follows:

In my view the statement should be admitted into evidence as a spontaneous utterance and as a prior statement to assist the court with the ultimate credibility of Ms. C.. Spontaneous in the sense that prior to her being advised by Constable Flint, that she was about to be searched, there is no evidence that she was advised that there would be a search. She had already on her evidence been subjected to as many as four searched prior to arriving at the station and when confronted with the prospect of yet another, uttered the statement sought to be introduced. It followed immediately upon Constable Flint’s advising her of that pending search and occurred within short minutes of her arrival at the station.

[10] The Crown stated that the complainant was cross-examined on the statement so there was no inherent danger of its being unreliable.

[11] The Crown submitted that in Khan [Dr.] v. College of Physicians and Surgeons of Ontario, 1992 2784 (ON CA), 9 O.R. (3d) 641, paras. 34-54, the court set out circumstances in which a prior consistent statement may be admitted as evidence. Out-of-court statements can have their own value. Here, the statement was not used for its truth. Rather, it was evidence about the way the complainant reacted when she made the statement.

Analysis

[12] The trial judge admitted the prior consistent statement on the basis of necessity. Necessity is a component of the hearsay analysis along with reliability. It often involves a recanting, dead or absconding witness who made the prior consistent statement. If the witness does not attend at trial, it may be necessary to admit the prior consistent statement to obtain the evidence. Here, the complainant did give evidence at trial, so it was not necessary to admit the prior consistent statement in order to obtain the evidence.

[13] The trial judge stated,

In my view, it also meets a threshold test of necessity, given that there has been a direct attack on her [the complainant’s] credibility by way of an allegation of complete fabrication and she has professed lapses of memory or gaps of memory with respect to some portions of her evidence. Having touched on the issue of an allegation of fabrication by the defence, I would also admit the statement as a prior statement of Ms. C. as relevant and capable of assisting the trier of fact in determining a fact in issue and the credibility of Ms. C., it having been put squarely in issue that she has 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.

[14] The Crown states that the value in the prior consistent statement was the evidence of the complainant’s demeanor when she made the statement. 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. Further, in R. v. Rhayel, 2015 ONCA 377 at para. 82, the court considered the admissibility of a videotaped statement. It stated, “Given my conclusion that the videotaped statement was inadmissible for its truth, it follows that the complainant’s demeanor as she gave the statement was also inadmissible.”

[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.

Conclusion

[16] The conviction is quashed and a new trial is ordered. The appellant shall attend at Courtrom 201 at the Court House, 50 Eagle Street West, Newmarket, Ontario on within two weeks of the release date of this decision to fix a new trial date.

VALLEE J.

Released: November 18, 2015