Court File and Parties

COURT FILE NO.: 70/16 DATE: 2017/02/27 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen, Applicant AND: M.S., Respondent

BEFORE: Justice J. C. George

COUNSEL: Christopher Heron, for the applicant Marcia Hilliard, for the respondent

HEARD: February 7, 2017

Endorsement

[1] It is alleged that M.S. sexually assaulted T.S., and invited her to touch him for a sexual purpose. T.S. has special needs, and at the date of the alleged offences, was under the age of 16.

[2] M.S. has elected trial by judge and jury. It is to commence March 27, 2017.

[3] The complainant testified at a preliminary hearing where she had difficulty providing an approximate time of the alleged offences. She did recall disclosing the incidents to her aunt and mother, but not until some time had passed. The police were called soon after these disclosures.

[4] The Crown brings this motion requesting that I permit the mother, K.S., and aunt, A.G., to testify about the complainant’s statements.

[5] The complainant disclosed to them, separately, that she had been sexually assaulted by S.M. The Crown wants the witnesses to speak not only to the fact a disclosure was made - and to its timing and location - but to the content.

[6] If allowed, this would amount to a prior consistent statement of the complainant. The Crown submits it is admissible as part of the narrative, and that it should be used to assess the complainant’s credibility.

[7] Such evidence is presumptively inadmissible. The Crown bears the burden of proving admissibility, which, practically, is to show that it has probative value, and that any risk it be used for the truth of its content can be eliminated through a limiting jury instruction.

[8] Narrative is not, strictly speaking, a traditional hearsay exception. In fact, it’s not hearsay at all, as hearsay exceptions are typically to allow in evidence for the truth of its content. The only permissible purpose would be to provide context and impart a greater understanding to the jury. The Crown argues the complainant’s credibility is a critical part of this context, particularly so because of her age and special needs.

[9] The proposed purpose is to use it to assess her truthfulness and not to confirm the allegation itself. This is a real distinction, but somewhat esoteric. Something can at once provide context and a greater understanding, but not be used to substantiate the very allegation before the court. This is possible. The question here is, is the risk too great that it will, notwithstanding a jury instruction, be used for an impermissible purpose?

[10] The Crown relies on several authorities.

[11] The Supreme Court, in R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, confirms the presumptive inadmissibility of prior consistent statements, which arises from the fact they typically lack probative value, and constitute hearsay when adduced for the truth of its content. It went on to detail when it could be introduced as narrative, which would be relevant only to place the allegation in its proper context, and assist in a determination of truthfulness.

[12] It’s difficult to consider this in the abstract, or to anticipate whether a jury will, despite a specific instruction, use the evidence improperly. In every case, a judge must determine whether the probative value of the evidence outweighs its prejudicial impact.

[13] The Crown relies primarily on the Supreme Court’s decision in R. v. Dinardo, 2008 SCC 24. That case is similar to ours. It involves an allegation of sexual assault and exploitation of a person with a disability. Mr. Dinardo was convicted at trial. The Quebec Court of Appeal dismissed his appeal. The Supreme Court, in allowing the appeal and ordering a new trial, made several instructive comments on this evidentiary issue.

[14] Mr. Dinardo, a cab driver, drove the complainant for 15 minutes. She was a customer. During the journey it is said he touched her breasts, and put his finger inside her vagina. She was 22 years old and “mildly mentally challenged”. Shortly after the ride, she spontaneously disclosed the incident to a teacher. She made a similar disclosure to another person.

[15] During cross examination, the complainant acknowledged having “invented stories” before, and at one point indicated she did so respecting this allegation. She resiled from that later in her testimony, once again indicating an assault had occurred. Witnesses testified to the complainant’s account of the allegations. These hearsay statements included: “the taxi driver touched me”, “this morning the driver who brought me here, he touched my breast”. Additional witnesses testified that the complainant had a history of lying, and was manipulative.

[16] The trial judge emphasized that the complainant’s story was “consistent” and that her statements to others were made “spontaneously”. He further indicated that “…in this case there is a form of corroboration in the facts and statements of the victim, who never contradicted herself”.

[17] At the Supreme Court, and on the issue of prior consistent statements, Charron J. writes this at paras 37 - 39:

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 of 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 ‘confirming the truthfulness of the sworn allegation’ and ‘using narrative evidence for the permissible purpose of showing the fact and timing of a complainant, which may then assist the trier of fact in the assessment of truthfulness or credibility……’

In R. v. G.C., [2006] O.J. No. 2245 (QL), the Ontario Court of Appeal noted that the prior consistent statements of a complainant may assist the court in assessing the complainant’s likely truthfulness, particularly in cases involving allegations of sexual abuse against children…..

Although properly admitted at trial, the evidence of prior complaint cannot be used as a form of self-corroboration to prove that the incident in fact occurred. It cannot be used as evidence of the truth of its contents. However, the evidence can ‘be supportive of the central allegation in the sense of creating a logical framework for its presentation’, as set out above and can be used in assessing the truthfulness of the complainant. As set out in R. v. F(JE) at p. 476:

The fact that the statements were made is admissible to assist the jury as to the sequence of events from the alleged offence to the prosecution so that they can understand the conduct of the complainant and assess her truthfulness. However, the jury must be instructed that they are not to look to the content of the statements as proof that a crime has been committed.

The trial judge understood the limited use that could be made of this evidence, as appears from his reasons…..

In cases involving sexual assault on young children, the courts recognize the difficulty in the victim providing a full account of events. In appropriate cases, the way the complaint comes forth can, by adding or detracting from the logical cogency of the child’s evidence, be a useful tool in assisting the trial judge in the assessment of the child’s truthfulness……

The Ontario Court of Appeal’s reasoning in G.C. applies equally to the facts of this case. The complainant’s prior consistent statements were not admissible under any of the traditional hearsay exceptions. Thus, the statements could not be used to confirm her in-court testimony. However, in light of the evidence that the complainant had difficulty situating events in time, was easily confused, and lied on occasion, the spontaneous nature of the initial complaint and the complainant’s repetition of the essential elements of the allegations provide important context for assessing her credibility.

[18] The Crown submits that the court’s specific reference to the ‘complainant’s repetition of the essential elements of the allegations’ in Dinardo clearly means such narrative evidence is not limited only to date, time, place and the fact of the disclosure, but includes the content of such disclosures.

[19] It highlights the F(JE) decision which speaks to how such evidence can aid the jury in understanding the sequence of events.

[20] The Crown writes this at para. 7 of its factum:

The facts in Dinardo bear similarity to those in the case at hand given the nature of the complainant’s limitations, and the spontaneous nature of the initial complaint. In circumstances where the complainant has difficulty recalling the full account of events, this evidence assists the trier in understanding the logical sequence of how the incidents were brought to the attention of police.

[21] The accused opposes this motion. He concedes only that the proposed witnesses can testify to the fact they received a disclosure from the complainant, and the date, time and place of said disclosure. He submits the Crown should be prevented from introducing any of the details of these disclosures as its prejudicial effect would outweigh its probative value. In other words, it does nothing to provide a chronology or narrative to the jury.

[22] The defence filed authorities, each where similar evidence was not admitted. For instance, in R. v. Ay, [1994] B.C.W.L.D. 2339, the court explained that “the fact a prior complaint was made, when it was made, and why it was or was not made in a timely fashion, are all matters relevant and admissible to establish the conduct of the complainant in a criminal case….however, the content of any prior statement cannot be used to demonstrate consistency with, and therefore the probative truthfulness of, the complainant’s evidence at trial, and thus such content is inadmissible unless relevant to some other purpose.”

[23] The Crown quite rightly points out that this matter predates Dinardo.

[24] I am very concerned that the jury will use such evidence for an improper purpose. The question is, whether a specific jury instruction abates that risk. Counsel cites the Court of Appeal’s decision in R. v. D.B., 2013 ONCA 578 where the trial judge improperly used hearsay evidence, in the form of a child complainant’s disclosure to her mother. He found the hearsay to be corroborative of the main allegation. The point is, if a judge, trained in the law, can make this mistake, so too will a panel of lay people.

[25] Dinardo does stand for the proposition that such evidence can be admissible. It does not, however, require admission. Having said that, absent significant identifiable differences with Dinardo, I should lean towards inclusion, and trust the jury and effectiveness of a limiting instruction. The Supreme Court says I should.

[26] It is difficult to consider this in the abstract, but there must be more than simply the fear of evidence misuse. Were that the test, the court in Dinardo would have surely created a blanket exclusion, to be applied in all instances. It didn’t. The risk is always present.

[27] The question I must ask is, is the proposed evidence, in the unique circumstances of this particular case, necessary to support “the central allegation in the sense of creating a logical framework for its presentation?” (see G.C.).

[28] The Court of Appeal’s reasoning in G.C. was particular to that complainant, who didn’t just have difficulties in placing a date or time on the event she was describing, but who was “easily confused”; who had shown a propensity to lie; and whose utterances were spontaneous and a repetition of the essential elements of the allegations. The court concluded, as it did in Dinardo, that the content of the prior disclosure was therefore important context.

[29] In this case, on these facts, I don’t come to that same conclusion. Similar to G.C., the court in Dinardo noted, in great detail, the wild inconsistencies in the complainant’s testimony, and her own admission that she made things up on occasion, including the very allegation against that accused. Both cases cite the spontaneous nature of the disclosures; the court in Dinardo relying, in part, on the fact the disclosures were made right after the event.

[30] This is not the case here, which distinguishes it from both Dinardo, and G.C.

[31] As a stand-alone factor, the need to assist T.S. in placing the event at a particular time, is not sufficient to warrant admission of this hearsay evidence. It offers no value, including to an assessment of her credibility or trustworthiness. This renders any potential benefit subordinate to the real risk of misuse and prejudice.

[32] The Crown’s motion is dismissed. The two witnesses, if called, can speak only to the fact a disclosure was made to them; the date, time and place of that disclosure; and what actions they took as a result.

“Justice J. C. George” Justice J. C. George Date: February 27, 2017