CITATION: R. v. A.-R., 2017 ONSC 3105
COURT FILE NO.: 128/16
DATE: 2017 05 19
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
A.-R.
Appellant
Arish Khoorshed, for the Respondent
Mark Halfyard, for the Appellant
HEARD: May 10, 2017
PUBLICATION RESTRICTION NOTICE
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
[On appeal from the judgment of Justice David A. Harris of the Ontario Court of Justice dated July 26, 2016, with Reasons reported at 2016 ONCJ 479]
REASONS FOR JUDGMENT
Woollcombe J.
Introduction
[1] On July 26, 2017, after a two day trial before Justice Harris, the appellant was convicted of sexual assault, invitation to sexual touching and sexual interference. He appeals against his conviction.
[2] The appellant raises three grounds of appeal:
a. That the trial judge erred in concluding that the complainant’s mother did not adopt portions of her police statements. This error is said to be significant because the defence says that had this evidence been accepted by the trial judge as having been adopted, it would have established an inconsistency in the complainant’s evidence and an alternative source of her sexual knowledge.
b. That the trial judge erred in using the absence of evidence to corroborate the complainant’s account.
c. That the trial judge erred in not analysing the inconsistencies in the complainant’s evidence cumulatively, leading to an unreasonable verdict.
[3] I will address briefly each of the arguments advanced on the appeal.
Did the trial judge err in concluding that the complainant’s mother did not adopt portions of her police statement?
[4] As I understand the appellant’s position, it is that the trial judge erred in finding that the complainant’s mother did not adopt her statement to the police that M.A. (the complainant) knew a boy at school who talked to her “about sex all the time”. The appellant says that this is significant because part of the reason that the trial judge accepted that the complainant’s allegations were proven beyond a reasonable doubt was his conclusion that the complainant had not been influenced by learning about sexual matters elsewhere, including at school.
[5] It is important to look carefully at the evidence.
[6] In her evidence, the complainant’s mother was asked whether she recalled her daughter telling her that a boy in her school said he wanted to have sex with her. The mother replied, “no”.
[7] The mother was then referred to her statement to police. She was referred to a specific passage and testified that, “it doesn’t honestly refresh my memory, but I said it, so it must have been true at the time”.
[8] Counsel then read to the mother from parts of her statement. In the first passage, it appears that the mother told the police that there was a boy in her daughter’s class who was talking about sex all the time. Counsel then read a passage in which the mother said that her daughter had told her that “those two like each other and they’re going to have sex” and she asked her daughter if she knew what sex meant, and was told “kissing”. The witness was asked if that refreshed her memory.
[9] The complainant’s mother did not answer directly. She responded, “I think that she was talking about like a little boy saying, “Those two kids are gonna have sex” but said that it had not been a reference by her daughter to anyone having sex with her. There was further cross-examination about this issue. It was suggested to the mother that her daughter told her that this boy was talking about sex all the time. The mother acknowledged that this is what she had said.
[10] At one point, the complainant’s mother agreed that her daughter appeared to think that sex was just kissing. At another point, she confirmed that if her daughter had said anything further, she would have followed up with the school office.
[11] When the complainant testified, she was asked whether she recalled telling her mother that a boy said he wanted to have sex with her. She testified that she did not remember this and that it never happened. She said that boys never said that they wanted to kiss her and that boys usually talked about school.
[12] It was suggested to the complainant that someone at school may have taught her, or given her the idea, about touching her father‘s penis. She denied this.
[13] The complainant was never asked whether there was a boy at school talking about sex all the time.
[14] Beginning at para. 58 of his decision, the trial judge considered what he characterized as the “fourth alleged inconsistency”. He noted that:
…counsel argued that M.A. denied the suggestion that a boy at school had talked to her about sex whereas her mother testified that the boy talked about sex all the time…
[15] The submissions of counsel at the conclusion of the trial have not been placed before me. The only record I have about what counsel argued is this passage in which the trial judge summarized the argument.
[16] In his reasons, the trial judge accurately concluded that there was no inconsistency between what the complainant and her mother said about whether a boy at school had talked about sex all the time. There was no inconsistency. The complainant was never asked the relevant question. As the trial judge correctly stated, she was asked if a boy had said he wanted to have sex with her and she denied this. In my view, the trial judge made no error in rejecting counsel’s suggestion that there was an inconsistency between what the mother said and what the complainant said about whether there was a boy at school who told her that he wanted to have sex with her.
[17] The trial judge then addressed the further argument that appears to have been made by trial counsel: that there had been a boy at school who talked about sex all the time. I accept appeal counsel’s argument that had the trial judge had evidence upon which to find that there was a boy at the complainant’s school who talked about sex all the time, depending on what the nature of what was said, this might be relevant to assessing whether there was a place other than the allegations from which the complainant learned about sex.
[18] The difficulty with the appellant’s position is that there was no admissible evidence supporting the inference that the complainant learned about sex at school. The complainant was never asked whether there was a boy at school who talked about sex all the time. She was the person who was there. She was the only person who was in the position to give direct evidence as to what she heard and learned from others at school.
[19] The appellant’s argument seems to be that the trial judge ought to have concluded that there was evidence that the trial judge should have relied upon that the complainant learned about sex at school. I reject this argument.
[20] The trial judge’s first reason for rejecting the defence argument was that the mother never adopted the passage from her statement in which she is said to have told police that her daughter told her that a boy at school talked about sex all the time. I accept the appellant’s position that for a witness to adopt a statement, the witness needs to acknowledge having made the statement and acknowledge it to be true.
[21] The manner in which the mother was cross-examined about her previous statement was somewhat unorthodox. Early on, she agreed that a part of the statement she had read was true. Subsequently, she acknowledged that counsel had accurately said what she said in her statement. But, when it came to the issue of whether her daughter had ever said that a boy at school talked about sex all the time, she agreed that this is what she had said but was not asked whether the contents of what she said were true. In the normal course, this is required before it can be said that a statement has been adopted. I understand, therefore, why the trial judge came to the conclusion that he did as far as whether the mother adopted the statement.
[22] At the same time, I accept appeal counsel’s position that the cross-examination as a whole suggests that the complainant confirmed in her testimony that her daughter did say that her daughter told her that a boy talked about sex. I infer that she was accepting the accuracy of what she had said in her statement by the rest of her evidence.
[23] However, even if the trial judge could have concluded that the mother adopted her prior statement, he was correct in concluding that the mother’s statement was hearsay evidence, and not admissible for its truth. There was no suggestion that she was present for whatever was said at school.
[24] The appellant argues that the Crown at trial raised no objection that the mother’s evidence was hearsay. While the Crown did not object to the cross-examination, I have no way of knowing whether in her submissions at the end of the trial, the Crown raised the issue of the mother’s evidence being hearsay. I am not sure much turns on this anyways. Inadmissible hearsay evidence does not become admissible if the Crown fails to object to it at the time it is adduced. It would be an error for the trial judge to rely on inadmissible hearsay evidence.
[25] The appellant further submits that the mother’s hearsay evidence might have been admissible. I cannot accept this submission. Hearsay evidence is presumptively inadmissible for its truth. Hearsay evidence may be admitted pursuant to a principled analysis of its necessity and reliability.
[26] In this case, I fail to see how the mother’s hearsay statement about what her daughter told her had been said by a boy at school could ever meet the necessity requirement. The complainant was available to testify. She did testify. She was asked about conversations at school. Counsel chose not to ask her whether a boy talked about sex all the time at school. Having not even sought an answer from the person who was best positioned to give direct evidence, trial counsel could not have succeeded in having the mother’s hearsay statement as to what her daughter had told her about what had been said at school meet the necessity requirement for admissibility.
[27] I find that the trial judge properly concluded that the hearsay statement of the mother was not admissible evidence.
[28] Even if the trial judge had concluded that the mother adopted her police statement, and had concluded that the mother’s hearsay statement was admissible for its truth, there was a further problem with the use that the defence wanted to make of the child’s statement. As the trial counsel pointed out at para. 67, there was no evidence at all as to what the complainant would have meant had she told her mother had a boy “talked about sex”. To the extent that there was evidence on this issue, it appears from her mother’s evidence that the complainant understood sex to be only kissing. This, of course, could not have assisted the defence position that the complainant learned about the sexual activity she alleged from what she heard at school.
[29] In summary, while the appellant frames his argument as one of error in the trial judge not finding that the mother adopted her earlier statement, this argument must be understood in the context of the evidence that was adduced and the arguments that appear to have been advanced. On the basis of the record, I am of the view that the trial judge correctly determined that there was no inconsistency between the complainant and her mother and made no error in concluding that the only evidence about the complainant learning about sex from school was hearsay and so not admissible.
Did the trial judge err in using the absence of evidence to corroborate the complainant’s account?
[30] The appellant submits that the trial judge erred when he concluded, at para. 66 of his judgment that:
…mother actually corroborated M.A.’s answer that she never told her mother that a boy at school wanted to have sex with her…
[31] The appellant submits that the mother’s evidence was that she did not recall this. The argument is made that the lack of recollection on the mother’s part cannot amount to corroboration of the complainant, and that the trial judge inappropriately bolstered the complainant’s credibility on this basis.
[32] I do not accept the appellant’s position that the trial judge erred in his characterization of this evidence. The complainant said that she never told her mother that a boy said he wanted to have sex with her. When asked if she recalled her daughter telling her that a boy said he wanted to have sex with her, the mother answered that she did not recall this. I think that all that the trial judge was saying was that there was no inconsistency between the complainant and her mother about the fact that the complainant had never told her mother that a boy at school wanted to have sex with her. Read in context, I do not agree that the trial judge relied on the fact that the mother said she did not recall this to improperly bolster the complainant’s credibility.
Did the trial judge err in not analyzing the inconsistencies in the complainant’s evidence cumulatively, leading to an unreasonable verdict?
[33] The appellant also submits that the trial judge erred in not assessing the reliability and credibility of the complainant against all of the inconsistencies and the evidence as a whole. As I understand his position, he acknowledges that the trial judge dealt with many of the alleged inconsistencies in the complainant’s evidence. However, it is argued that the trial judge needed to go further in his analysis and determine the cumulative effect of these inconsistencies.
[34] I do not agree.
[35] At para. 39 of his reasons, before he embarked on an analysis of the alleged inconsistencies of the complainant, the trial judge recognized, expressly, that in assessing her credibility, he needed to examine inconsistencies in what she said in the witness box and what she said on previous occasions. He recognized, as well, that inconsistencies on material matters can justify concluding that a witness is neither credible nor reliable. He concluded, “in determining this, it is necessary to look at the totality of the evidence”.
[36] The trial judge then carefully reviewed all of the alleged inconsistencies in the complainant’s evidence. He went further and considered an inconsistency in her evidence that had not been argued by counsel.
[37] Finally, at para. 148, the trial judge stressed that he had taken all of the relevant factors into account in deciding the case, and that he had considered all of the evidence in totality and not considered any one factor in isolation. It was only at that point that he stated that he found that the complainant was credible and reliable.
[38] Having reviewed the trial judge’s careful and thorough assessment of the complainant’s evidence, I am satisfied that he considered the evidence as a whole in reaching the conclusions that he did about her credibility and reliability. I see no error.
Conclusion
[39] The appeal is dismissed.
Woollcombe J.
Released: May 19, 2017
CITATION: R. v. A.-R., 2017 ONSC 3105
COURT FILE NO.: 128/16
DATE: 2017 05 19
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
HER MAJESTY THE QUEEN
– and –
A.-R.
REASONS FOR JUDGMENT
WOOLLCOMBE J.
Released: May 19, 2017