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COURT FILE NO.: CR-17-10000013-00AP
DATE: 20180206
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
N. W.
Appellant
E. Middelkamp, for the Respondent
M. Savard, for the Appellant
HEARD: November 14, 2017
Justice S. Nakatsuru
(PUBLICATION BAN PURSUANT TO S. 486.4 OF THE CRIMINAL CODE)
I. OVERVIEW
[1] This trial of one count of sexual assault turned on credibility. M.M., a teen-aged girl, was staying at the appellant’s home where he lived with his family and an adult family friend. M.M. testified that late one evening as she was in her bedroom, the appellant returned from a barbeque with his wife and teenage daughter. The appellant sexually assaulted her off and on over a three hour period. The sexual assaults consisted of groping and touching while M.M. was trying to go to sleep. The appellant testified and denied committing the sexual assaults. He testified that he got home, went to his bedroom, watched TV and then was asleep throughout the night. His family members and the tenant friend testified for the defence. The trial judge believed M.M. and disbelieved the appellant. The appellant appeals his conviction for sexual assault.
[2] The key issue on this appeal is the admissibility of text messages sent by M.M. to two of her friends as the sexual assault was occurring and the use made of them by the trial judge. For the following reasons, I grant the appeal and order a new trial.
[3] I find, firstly, the spontaneous utterance (or “res gestae”) exception to the hearsay rule should be adjusted to better accord with the principled approach to hearsay; the party seeking admission of a hearsay statement for its truth should bear the onus of proving that admission is necessary where the declarant testifies at trial. Secondly, adopting this analysis, I find that the text messages were improperly admitted for the truth of their contents under the spontaneous utterance exception. Thirdly, the trial judge improperly used the texts to corroborate M.M.’s credibility. Finally, it is not necessary to deal with the ground of appeal dealing with the insufficiency of the reasons.
II. SUMMARY OF THE FACTS
[4] In May of 2015, the appellant, his wife, and daughter lived in a two-story townhouse. A family friend, H.G. and her son also lived there in the basement. The second story of the house had two bedrooms, a bathroom, and a hallway. M.M., a friend of the daughter, was a 17 year old who had recently lost her mother. For that reason, she had been staying at the appellant’s home on school days since it was close to her high school. On May 3, 2015, M.M. had been sleeping in one of the second story bedrooms. The other was shared by the appellant, his wife, and his daughter.
[5] On that day, M.M. testified that she stayed home while the appellant, his wife, and his daughter went to a barbeque in Brampton. When they returned home in the evening, M.M. went to take a shower. The appellant seemed drunk. He came up to M.M. and told her that he wanted to sleep with her that night. M.M. just brushed it off. After showering, she went into her bedroom.
[6] M.M. testified that from about 11 p.m. to 2 a.m., the appellant entered her bedroom uninvited at least six times. During these times he made sexual comments to her and did such things as rub her legs and fondle her breasts. The appellant would leave only to return to her room after a period of time passed. M.M. testified that she felt a little weird and panicky about the appellant’s actions. She testified she was freaking out but tried to remain calm. In cross she conceded at one point that she was not freaking out or anything like that. However, in re-examination, she testified she meant she was trying not to act on her fear and panic. She testified that she did not want to give into her fear and wanted to portray herself as normal. M.M. did not say anything to anyone else in the house as this was going on. M.M. testified that she felt she could not do so given the appellant’s presence in the home. At 7 a.m., the appellant returned once more, touched her leg, and left. M.M. left for school later that morning.
[7] During the times M.M. said the appellant was sexually assaulting her, M.M. used her phone to send a series of texts to two of her friends. The Crown introduced through M.M. redacted screenshots of two electronic conversations. She sent one series of texts through the app, WhatsApp, to her close friend R.P. R.P. testified at trial for the Crown. The other texts were direct Twitter messages to her friend R.C. who did not testify at trial. In both series of redacted texts, M.M. states that the appellant wanted to sleep with her, that he kept coming back into her room, touching her and trying to take off her pants, how she could not lock the door, and how she was “freaking out”. R.P., who was asleep at the time of the texts, did not respond until the next morning. R.C., however, responded immediately, telling M.M. to call the police or to bar the door. M.M. did neither. M.M. testified that she texted her friends for advice because she had no idea what was happening. She wanted help. M.M. said she hid her phone from the appellant or left the app she was using to text when he came into the room. M.M. testified that she did not call the police as she did not know what to say and did not want them involved because she did not want this happening at all.
[8] The next day at school, M.M.’s friend R.P. convinced her to tell the school authorities about what had happened. M.M. was not initially sure about going to the police but R.P. convinced her to do so. M.M. made a report to the vice-principal who then called the police. The police came and M.M. gave a videotaped statement on May 4th at the police station. At trial, she adopted that statement and it was introduced into evidence. In that videotaped statement, M.M. showed the police the texts that were on her phone. Parts of the videotaped interview were also redacted on the consent of the parties.
[9] The appellant testified. So did his wife, daughter, and family friend H.G. The appellant denied the allegations. He testified that after returning home from the barbeque, he showered and fell asleep on his bed. He remained there throughout the evening. He only once went into M.M.’s room earlier upon their return to get some of his clothes which were in a closet in her bedroom and to ask if she was hungry. The appellant’s wife testified that she ironed clothes in the hallway between the family bedroom and M.M.’s room for about 25 minutes. She testified her daughter and the appellant watched TV in bed until they fell asleep. After ironing, she spoke to M.M. briefly about laundry, took her own shower and then went to sleep in the same bed as her husband and daughter. She fell asleep. She testified that she never saw or heard the appellant leave the bed. The appellant’s daughter also testified to falling asleep with the appellant in the bed. She too did not see or hear him leave the bed. H.G. testified that after the family returned from the barbeque, she went upstairs and heard a conversation about laundry between M.M. and the wife. She again came up later around 1 a.m. to the first floor and saw M.M. reading on her phone. She stayed there with M.M. for about 40 minutes before returning to the basement.
III. THE TRIAL JUDGE’S RULING REGARDING THE TEXT MESSAGES
[10] No voir dire was conducted on the admissibility of the text messages. The Crown first showed M.M. the texts as she was giving her evidence in chief. The defence objected, inquiring about the purpose for the admission of the text messages. The defence conceded that the texts could be admitted as part of the narrative, but objected to their admission for the truth of their content. The Crown submitted that they were admissible under the res gestae or spontaneous utterance exception to the rule against admitting hearsay evidence. The defence relied upon the case of R. v. D. (D.L.), 2014 ABCA 218, 577 A.R. 363. The Crown submitted that this case was distinguishable on its facts.
[11] The trial judge made a ruling immediately after submissions. He ruled that on the basis of the evidence as it stood, the criteria for admission under the spontaneous utterance exception were present. He distinguished the case of R. v. D. (D.L.), on the basis that in that case, the complainant sent other texts that were unrelated to the sexual assault allegedly being committed against her at the time. These other texts did not constitute a cry for help. In the case at bar, however, the trial judge found that the texts sent by M.M. clearly constituted a cry for help. The trial judge therefore admitted the text messages for the truth of their contents.
[12] At the closing of the trial, neither Crown nor defence re-visited the issue of the admissibility of the text messages despite the trial judge’s implicit indication that he was willing to do so. The trial judge reserved his decision on the merits of the trial, and gave judgment about a month later. His judgment referred to his previous decision to admit the text messages for their truth. He stated he agreed with the Crown regarding their admissibility and use and relied on the decision of R. v. Nicolas (2004), 2004 CanLII 13008 (ON CA), 70 O.R. (3d) 1 (Ont. C.A.) and David M. Paciocco & Lee Stuesser, The Law of Evidence, 6th ed. (Canada: Irwin Law Inc., 2011) at p. 497, in concluding that the text messages could serve as both independent proof of the facts and evidence bolstering the credibility of the maker of the statement as a witness in the proceedings. Ultimately, the trial judge rejected the defence evidence, found it did not raise a reasonable doubt, and accepted M.M.’s evidence. He referred to the Crown’s submission that the complainant was “consistent” in her testimony and that cross-examination did not reveal any contradictions with her police statement or the texts sent to her friends. He concluded in the assessment of her testimony: “I also find that the texts sent to her friends during the course of the evening are corroborative and supportive of her evidence.”
IV. THE POSITION OF THE PARTIES ON THE APPEAL
[13] The appellant submits that the trial judge erred by admitting the text messages under the spontaneous utterance exception. He submits that the trial judge did not properly consider the nature of the electronic communications and improperly equated them with a 911 call. The trial judge did not appreciate that text messages were inherently less trustworthy than 911 calls, as they did not offer any evidence of the declarant’s state of mind. The appellant submits that in this case, the texts offered poor proof that M.M. was emotionally overwhelmed by a startling event. Further, the trial judge erred by failing to take the redactions and concomitant lack of a full record into account. There was no evidence to show that M.M. was not sending other more mundane text messages that, as in D. (D.L.), could undermine the Crown’s characterization of the texts as a cry for help. In addition, more than one of the text messages had been redacted, which further exacerbated the evidentiary gap. The appellant takes the position that the Crown failed to prove that these text messages fell within the spontaneous utterance exception to the rule against admitting hearsay. In addition, the appellant relies upon the principled approach to hearsay and argues that the prejudice caused by admitting the texts outweighed their probative value.
[14] The appellant further argues that the trial judge erred by relying on the text messages as prior consistent statements that corroborated M.M.’s testimony. The appellant contends that the trial judge’s reliance upon the corroborative nature of the texts figured significantly in his analysis. The appellant submits that M.M.’s testimony could not be corroborative as it did not come from an independent source. Even if the text messages were admissible as spontaneous utterances, they added no evidentiary value to M.M.’s testimony.
[15] The respondent submits that the trial judge did not err in admitting the text messages as spontaneous utterances. There was no evidence that other texts were being sent at the relevant times. The finding of the trial judge that these texts were a cry for help was well supported by the evidence. The respondent submits that the spontaneous exception to the hearsay rule is consistent with the principled approach to hearsay. Further, there is generally no requirement that the witness be unavailable in order to admit hearsay statements, because the statement’s spontaneity makes it superior evidence to the witness’s in-court testimony. The respondent submits that D. (D.L.) stands for the proposition that text messages could qualify as excited utterances, even if it was not possible to make a determination on that issue in that case because no voir dire had been held.
[16] The respondent further submits that when the reasons for judgment are considered as a whole, the trial judge did not rely on the contents of the text messages to find they added weight to the complainant’s evidence. It is submitted that the trial judge referred to the circumstances of the text messages as they were sent during the course of the evening and not their contents as supportive of the complainant’s evidence. In other words, although the trial judge admitted the text messages as hearsay, the reasons of the trial judge showed that he limited its use to the circumstantial narrative exception to the rule against prior consistent statements.
[17] In the alternative, the Crown argues that if the trial judge erred in his use of the contents of the messages to confirm that the incident did in fact occur, this error did not affect the ultimate verdict or cause a miscarriage of justice. The proviso should be applied in this case and the conviction upheld.
V. THE LAW
[18] In my view, this case demonstrates that the existing common-law rule relating to spontaneous utterances is not in step with the principled approach set out by the Supreme Court of Canada, particularly in relation to the principle of necessity. When a declarant testifies in court, as M.M. did in this case, the necessity of the hearsay should no longer be presumed. The party wishing its admission should bear the onus of proving necessity and reliability. If the evidence is not necessary, it may be admitted simply as part of the narrative as circumstantial evidence.
[19] Let me first set out the framework for analysis regarding the admissibility of these text messages. There are two rules governing their admissibility:
The hearsay rules. The general rule governing out-of-court statements, or “hearsay”, is that such statements cannot be admitted as evidence of the truth of their contents. The principle behind this rule is that such statements are unreliable. However, there are a number of situations where historically judges have found that admitting such statements is generally necessary and the statements are generally reliable enough to admit. These are known as the traditional, categorical exceptions. One of these exceptions is the res gestae or spontaneous utterance exception.
The rule against prior consistent statements. In general, prior consistent statements cannot be admitted because they do nothing to add to the value of a witness’ testimony.
In this case, the defence objected to the admission of the texts for the truth of their contents but agreed that the texts could be admitted for narrative purposes. The trial judge ruled that the text messages were admissible hearsay and not simply narrative. Once admissible as a hearsay exception, the statement is not barred by the rule against prior consistent statements: see David M. Paciocco, “The Perils and Potential of Prior Consistent Statements: Let’s Get it Right”, (2013) 17 Can. Crim. L. Rev. 181 at p. 192.
A. Res Gestae/Spontaneous Utterances
[20] Lawyers and judges frequently resort to the phrase res gestae to describe this traditional hearsay exception. I am not the first to say this, but this Latin phrase is confusing and unhelpful. A more specific and meaningful way to identify the categorical exception to the hearsay rule is excited or spontaneous statement/utterance. The following definition of this exception was outlined by Robins J.A. in R. v. Khan, (1988) 1988 CanLII 7106 (ON CA), 42 C.C.C. (3d) 197 (Ont. C.A.), affirmed 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, at para. 21:
[A] spontaneous statement made under the stress or pressure of a dramatic or startling act or event and relating to such an occasion may be admissible as an exception to the hearsay rule. The stress or pressure of the act or event must be such that the possibility of concoction or deception can be safely discounted. The statement need not be made strictly contemporaneous to the occurrence so long as the stress or pressure created by it is ongoing and the statement is made before there has been time to contrive and misrepresent. Where the spontaneity of the statement is clear and the danger of fabrication is remote, the evidence should be received.
This exposition was more recently affirmed in R. v. Nguyen, 2015 ONCA 278, 125 O.R. (3d) 321, at para. 146. See also R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, at p. 540, and R. v. Nicholas, 2014 ONCA 56, 237 A.C.W.S. (3d) 224, at para. 88.
[21] The requirements for admission under this traditional hearsay exception are strict: see R. v. Moore, 2014 ONSC 650, 9 C.R. (7th) 194 at paras. 16-18. The statement must be made contemporaneous to an overwhelming event that has left the declarant under such pressure or emotional intensity that statement has a guarantee of reliability. I find the factors set out in the English case of R. v. Andrews, (1987) 84 Cr. App. R. 382 at p. 391, very helpful in applying this definition to the facts of a case:
The primary question which the judge must ask himself is – can the possibility of concoction or distortion be disregarded?
To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance as an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection. In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity.
In order for the statement to be sufficiently “spontaneous” it must be so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of the declarant was still dominated by the event. Thus the judge must be satisfied that the event, which provided the trigger mechanism for the statement, was still operative. The fact that the statement was made in answer to a question is but one factor to consider under this heading.
Quite apart from the time factor, there may be special features in the case which relate to the possibility of concoction or distortion.
[22] I would like to spend a few moments on the Alberta Court of Appeal’s decision in D. (D.L.). This case figured prominently at trial and in this appeal. It is one of the few reported Canadian cases that specifically deals with this hearsay exception as applied to text messages. In that case, the accused and the complainant, who had met in high school, went to an empty parking lot where they eventually had sexual intercourse in the back seat. The complainant testified that it was non-consensual. The trial judge found the complainant credible and that her evidence was confirmed by other evidence including text messages she sent to her friend while she was with the appellant in the car. These statements were consistent with her testimony at trial. The Alberta Court of Appeal allowed the appeal and ordered a new trial. They concluded that the text messages had not been initially admitted for the truth of their contents as a spontaneous utterance exception to the hearsay rule. They were admitted without objection, as defence counsel believed their use would be limited to refreshing the complainant’s memory. There was no discussion about the possible uses of that evidence. No voir dire was conducted. The trial judge did not analyze whether these text messages could be admissible under this hearsay exception. The Court of Appeal sent the matter back for a new trial so that a trial judge could create an evidentiary record and conduct a proper analysis.
[23] The respondent is correct that the decision does not support the proposition that text messages could never qualify as spontaneous utterances. The Court explicitly left open the possibility that some of the text messages could qualify.
[24] The key issue considered by the Alberta Court of Appeal was whether the texts were reasonably contemporaneous with the alleged sexual assault and made in circumstances of stress or pressure and of such emotional intensity to assure their reliability. The Crown on that appeal argued that these texts were a form of an electronic cry for help as in the case of R. v. Sylvain, 2014 ABCA 153, 575 A.R. 59, and Nicholas, cases dealing with 911 calls. In finding that they could not determine this based upon the evidentiary record, the Court made comments about the distinct nature of text messages. The appellant in this case relies upon those comments. The texts sent by the complainant in D. (D.L.) about how she was being sexually assaulted were interspersed with other messages between the complainant and her mother about more mundane issues. She further never asked her mother for help. In addition, while the complainant expressed her misgivings to her friend, she did not directly ask for assistance nor did she ever stop her texting during her time in the back seat. The Court was reluctant to characterize these texts as a cry for help. In addition, the issue of whether there was the requisite stress or pressure could not be readily demonstrated by the emotional state of the sender of a text message as it could in the case of a recorded 911 call. Another concern was the 45 minutes from the time she complained she was scared and her statement that the appellant was making her do things she really did not want to. From this, the Court was not sure when the sexual activities were in relation to the texts in order to determine if the texts were spontaneous.
[25] In my view, some of the factors that concerned the Court in D. (D.L.) have resonance on this appeal. Thus, the appellant tries to rely upon them. And the respondent tries to distinguish them. Much of the appeal and indeed the trial was focused on whether these text messages amounted to a cry for help in order to determine whether the text messages could be admitted under the categorical hearsay exception.
[26] After some careful reflection, I find that this is not only unhelpful but it obscures the analytical process best suited to arriving at the correct decision. Merely distinguishing or following D. (D.L.) would ignore the Supreme Court of Canada’s determination that the modern, principled approach should work in harmony with the traditional exceptions to the hearsay rule. It would also artificially limit my approach to the facts of this case based on the form the statements happened to take (in this case, text messages). Therefore I believe it important to return to first principles.
B. R. v. Starr and the Modified Common Law Hearsay Exceptions
[27] The Supreme Court of Canada has developed a functional and principled approach to hearsay analysis. This involves the consideration of the necessity and reliability of the hearsay evidence, rather than inflexible reliance on traditional, categorical exceptions. At the same time, the traditional hearsay exceptions like the spontaneous utterance exception remain. Importantly, though, they may need to be modified on the basis of the principles of necessity and reliability.
[28] In R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, Iacobucci J. set out the framework to be applied in a hearsay analysis:
(a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place.
(b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance.
(c) In "rare cases", evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.
(d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.
See also R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 15.
[29] In my view, the traditional hearsay exception of spontaneous utterances has focused mainly on factors relevant to threshold reliability. Judges have paid little attention to whether the hearsay utterance is necessary. When the declarant is dead or otherwise unavailable to testify, then the necessity requirement is easily met. However, when as here, the declarant is available to testify, a more serious issue arises.
[30] Let me quickly acknowledge that the traditional hearsay exception of spontaneous utterances did not require that the declarant be unavailable. Even when a witness is in court and adopts the truth of the prior spontaneous utterance, the prior out-of-court statement still remains hearsay as the purpose for which the evidence is adduced is for the truth of its content and there is an absence of a contemporaneous opportunity to cross-examine the declarant: see R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 35.
[31] When dealing with the spontaneous utterance hearsay exception, judges have generally presumed the principle of necessity. James H. Chadbourn, rev, Wigmore on Evidence, (Canada: Little, Brown & Co., 1976) at s. 1748 is a leading proponent on why necessity can be presumed:
Necessity is foregone in cases of spontaneous statements because of…the superior trustworthiness of his extrajudicial statements as creating a necessity or at least a desirability of resorting to them for unbiased testimony. It is this last reason that suffices equally for the present exception. The extrajudicial assertion being better than is likely to be obtained from the same person upon the stand, a necessity or expediency arises for resorting to it….It follows that the death, absence, or other unavailability of the declarant need never be shown under this exception-a proposition never disputed.
[32] Marc Rosenberg (before his appointment to the Ontario Court of Appeal) wrote in “B. (K.G). Necessity and Reliability: the new Pigeon-Holes” (1993) 19 C.R. (4th) 69 at pp. 73-74:
As Wigmore explains, while it is a precondition of most hearsay exceptions that the hearsay evidence be necessary because of the unavailability of the declarant, the necessity principle is also satisfied where, although the declarant is available, the statement sought to be admitted “may be such that we cannot expect, again, or at this time to get evidence of the same value from the same or other sources”. The spontaneous utterance exception is one example. While the declarant may be available, the “superior trustworthiness” of the spontaneous utterance creates a necessity or desirability of resorting to the “unbiased testimony”. Put another way, while the declarant is available, the best evidence is not his or her testimony months or years later but the utterance made under the stress of the event which is a spontaneous and sincere response produced by the external shock.
[33] Paciocco makes the same point in his article at pp. 192-193:
If the declarant is testifying in the case, how is it “necessary” to admit hearsay in order to get the declarant's version of events before the court? In fact, even though we typically define “necessity” by asking whether hearsay is required to get the declarant's version of events before the court, the concept is actually more subtle than this. To understand how and why, consider the role that the “necessity” requirement to the hearsay rule performs.
Whereas the “reliability” component of the basic hearsay principles exists to ensure that hearsay is not admitted unless it is reasonable to rely upon it, the “necessity” component performs a “best evidence” function. It exists to ensure that if it is possible to present “better evidence” in the form of in-court testimony, parties should not be permitted to resort to hearsay proof. In-court testimony is generally “better” because it can be more readily evaluated for its truth. As indicated, it is made under oath, the demeanour of the witness can be observed by the decision maker, and cross-examination will produce the data required for the rational evaluation of the evidence to see if it should be believed. There are times, however, when hearsay evidence is expressed under circumstances that yield tremendously helpful criteria for evaluating the reliability or credibility of a factual claim. There are therefore cases where legislators and the common law created hearsay exceptions that do not have necessity components. The most important examples are the business records exceptions and the res gestae exceptions.
The res gestae exceptions do not have a necessity requirement either, arguably for similar reasons. In-court testimony may not be better evidence than “excited utterances” because in-court testimony is not uttered in the pressure of the moment before an opportunity to concoct has arisen, or during an event with a factual setting that will permit the accuracy of the statement to be evaluated in context. [Citations omitted.]
[34] I wish to stay a moment with the Paciocco article. Although Paciocco argues that admission of prior consistent statements as hearsay is benign provided that restricted admissibility concerns are appropriately addressed by the trier of fact, he goes on and assesses what actual added value is gained by this hearsay exception. He comes to the conclusion that it is really not the hearsay portion of the statement which makes the evidence superior. Rather it is the circumstances in which the statement is made. I will quote from that article where he makes this compelling argument:
While the hearsay claim, viewed in isolation, may prove to be redundant where the witness makes the same factual claim during in-court testimony, there may be added value in admitting the prior consistent admissible hearsay and using its indicia of reliability to assist in evaluating the accuracy of the factual claim the witness is advancing. To be clear, there is no added value in the fact that the same statement was repeated; the prohibited inference would be offended by reasoning in this way. And there is no added value in the fact that two items of admissible evidence point in the same direction; it would offend the rule against using prior consistent statements as corroborative to accept this. The added value, if any, comes from the context and circumstances in which the admissible hearsay statement was made; for example, the fact that the statement was recorded promptly as a matter of duty in an important business record by someone gives additional reasons for rationally choosing to believe the witness when the witness makes the same claim while testifying. Similarly, the fact that the witness made the same claim by way of an excited utterance in the heat of the moment and before any opportunity to concoct could reasonably have arisen provides additional reasons for rationally choosing to believe the witness's in-court testimony containing the same utterance.
In sum, when prior consistent statements are proved as admissible hearsay evidence where the declarant offers the same testimony in court, it is not the “hearsay part” that actually adds weight to the scales. That hearsay claim is redundant to the claim made in the testimony. What adds weight, if anything, is the “declaration part” of the statement block. While there is no weight in the simple fact of repetition and no independent corroboration in repetition, the circumstances in which the hearsay statement was made--its indicia of reliability-- can and should add weight to the correlative in-court testimony. [Citations omitted.]
[35] As I read this passage, the probative value comes mainly from the statement as narrative as circumstantial evidence rather than from the truth of its content. This assessment of the value of a statement under this hearsay exception as argued by Paciocco was confirmed by the Ontario Court of Appeal in R. v. Mackenzie, 2015 ONCA 93, 19 C.R. (7th) 150. See also R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520 at para. 49, citing the article by Paciocco for this interpretation of Mackenzie. In my view, if this is the true reason why the hearsay evidence is superior, or, in the language of the principled approach, “necessary”, there is no persuasive reason why the statement should be admitted for the truth of its contents when the declarant testifies in court. Its admission as circumstantial evidence would suffice.
[36] I am in agreement with the authors of Hill et al., McWilliams’ Canadian Criminal Evidence, loose-leaf (consulted on January 30, 2018), (Aurora, Ont.: Thomas Reuters, 2010), ch. 7 at p. 80, where they said the following about a potential conflict between the spontaneous exclamation exception and the principled approach:
The more problematic (but not fatal) aspect of the exception is necessity. There is no requirement that the declarant not be available. Indeed, the declarant may even testify and yet have their out-of-court spontaneous exclamation admitted for its truth. While one might concede the superior “sincerity” value of this evidence, it does not follow that it has any significant advantage over the in-court testimony of the witness when issues related to perception and narration are factored into the assessment. Where the witness testifies and relates the same content as the out-of-court spontaneous declaration one might question whether in every case (or even in most cases) the out-of-court statement has sufficient “plus-value” to render its admission “necessary” even on a more relaxed measure.
[37] In some instances, an obvious “plus-value” to the spontaneous exclamation even when the declarant testifies will exist to render its admission necessary. An example is when the witness does not recall or can only partially recall the out-of-court statement made. Another example is when there is added probative weight due to a heightened contemporaneous emotional reaction attached to the statement. The latter is exemplified by the 911 audio recordings that have been admitted under this categorical exception.
[38] However, not every case is so obvious. It could be argued that in those cases, the onus should be on the party objecting to its admission to satisfy the judge that though the statement falls within the categorical exception to the hearsay rule, it should not be admitted because necessity and reliability is lacking – in other words, that this is one of the “rare” cases referred to in the third part of the Starr framework. In my opinion, the better approach is to modify the common law exception when the declarant is available to testify in court. I say this for the following reasons:
The party who wishes the admission of hearsay is in a better position to be aware of the nature of the witness’s evidence and to call evidence to establish its necessity.
A purposive and principled analysis of the specific facts of each case will lead to better decisions. The attraction of the principled approach is that it gives primacy to coherence and reason over ossified, historical legal rules. In this case, I either analyze the issue of necessity taking into account all relevant considerations under the principled approach, or I just accept that the rationales noted above have application to this case without any analysis or opportunity for the parties to address it. I do not believe the spontaneous utterance exception is so carefully defined that necessity will always be met.
This rule will enhance judicial accountability. Rather than just assuming necessity unless shown otherwise, adapting the common law rule in cases where the declarant is available to testify will make transparent why this evidence is being admitted for its truth.
This rule will help avoid the danger of misuse. Prior consistent statements cannot be used to corroborate the complainant since they are not independent. When the declarant testifies in a consistent way to the prior statement, the hearsay aspect of the statement becomes redundant, although the declaration portion of the statement may have value. However, once admitted for its truth, there is a danger that the trier may see probative value in the mere fact of its repetition.
This rule will improve trial efficiency. If the witness testifies to the same thing in court, there is no benefit to hearing it again: see Paciocco at p. 186.
[39] Both parties cited Moore. This is a decision of my colleague, MacDonnell J. I agree with his comment in that decision that if the declarant’s testimony is of equal value to the out-of-court statement, then necessity is not made out and the exception cannot be invoked. Where I part company with MacDonnell J. is where he states the view that a true spontaneous utterance always has greater value because of the overpowering emotional or psychological event made it unlikely that the declarant could have fabricated the statement.
[40] I am not persuaded this should be the right approach. For me, it makes sense that the necessity analysis be focused on the need for the hearsay after taking into account all relevant factors including the ability of the defence to cross-examine the declarant at trial. This is more rational. This is more transparent. This provides a better analytical framework to assess whether a statement should be admitted. The traditional definition of this exception focuses on the inner psychological workings of the declarant at the time the out-of-court statement was made. In some instances, this could lead to the wrong result. A good liar with an overpowering but opaque motive to lie can create the circumstances whereby it might seem reasonable they were acting under the sway of an overwhelming shocking event. When that liar is available to give their account under oath or affirmation in court and be probed under cross-examination, the truth seeking process is not furthered by admitting that prior statement as a hearsay exception. Thus, I see merit in partially modifying the common law exception.
[41] I believe the value of this approach is exemplified and supported by the case of Khan (2017), a decision by a 5 person panel of the Ontario Court of Appeal. In this case, the Court applied the principled approach and declined to admit the hearsay. This was an appeal of a summary conviction appeal judge’s decision to quash Mr. Khan’s conviction for sexual assault. Mr. Khan was a police officer who transported the complainant to the police station. It was alleged he sexually assaulted her in the back of his cruiser. While being paraded at the police station, a female officer said she was going to search the complainant. The complainant said, “I’ve already been searched three times, why are they searching me again”. At trial, the statement was admitted on the basis that it was a spontaneous utterance and also under the principled approach to the hearsay rule. On appeal, the summary conviction appeal court quashed the conviction and ordered a new trial on the basis that this prior consistent statement was not admissible under the principled approach as it was not necessary because the complainant had testified at trial. The trial judge further erred by using the prior consistent statement for the truth of its content and finding that the consistency of the statement enhanced the complainant’s credibility. Upon further appeal to the Ontario Court of Appeal, the conviction was restored. Hourigan J.A., speaking for the majority, found that the trial judge had admitted and used the statement properly. However, he held that it should not have been admitted under any hearsay exception.
[42] The trial judge identified three routes of admissibility for the statement: 1) under the hearsay exception of spontaneous utterance; 2) under the principled approach to hearsay; and 3) as an exception to the rule against prior consistent statements.
[43] Hourigan J.A. did not address whether the statement could be admitted under the categorical hearsay exception of a spontaneous utterance. This was because the Crown had conceded before the summary conviction appeal judge that the pre-conditions of the exception were not met. Thus, this route of admissibility was not addressed on appeal. However, when it came to the principled approach, Hourigan J.A. noted that the statement could potentially satisfy both reliability and necessity. The reliability came from the absence of an opportunity to concoct a story. However, necessity was a different matter when the witness testifies. He cited Paciocco’s article, stating that the necessity component of this statement performs a “best evidence” function. Where the better evidence is the in-court testimony, parties should not be allowed to resort to hearsay proof under the necessity principle. On the other hand, if the witness is unable to give a full and frank account of the events or has difficulty recalling significant details, the necessity function may be met even where the witness testifies. On the facts of Khan (2017), necessity was not met since the complainant testified consistently about the essential parts of the allegations even though there were some memory lapses. The record did not establish that the complainant was unable or unwilling to give a full account of the events or could not recall significant details of the events. Thus, the statement was not admissible under the principled approach to hearsay. Finally, Hourigan J.A. considered the third route to admissibility, as an exception to prior consistent statements, (narrative that is circumstantial evidence relevant to credibility) and found that the statement was properly admitted for this limited purpose.
[44] The concession that this statement did not fall under the spontaneous utterance exception could have been due to a concern that it was not sufficiently contemporaneous to the alleged sexual assault or the stress of the event was not such that the possibility of concoction or deception could be discounted. For whatever reason, the court in Khan (2017) did not consider it. Nevertheless, in my opinion, the reasoning and result of the case supports the wisdom of modifying the common law rule when it comes to necessity. Had the facts substantiated admission under the categorical hearsay exception, the statement would have been admitted even though one of the pillars for the admission of hearsay, necessity, was seriously lacking.
[45] In my opinion, the common law exception for spontaneous utterances should be modified to this extent: where the declarant testifies in court, the necessity of the hearsay should no longer be presumed. The party wishing its admission should bear the onus of proving necessity and reliability. In some instances, necessity may be easily shown. This requirement may be met if the declarant’s memory falters or a full account of the event cannot be obtained without the admission of the hearsay. Or the superiority of the out-court-statement may be obvious. However, unlike the traditional definition of a spontaneous utterance, necessity should not simply be presumed when the declarant is testifying.
[46] My modification does not make the traditional requirements for this hearsay exception irrelevant. The traditional criteria for a spontaneous utterance still addresses the reliability aspect of the principles underlying hearsay exceptions. Thus, they should still govern when determining the reliability of the statement. In Starr the Court held that a statement that fell within the criteria for admission for a spontaneous utterance carried with it a circumstantial guarantee of trustworthiness such that it met the reliability requirement of the principled approach. See Starr at para. 212.
[47] Alternatively, if I am wrong about the need to modify the common law rule for spontaneous statements, assuming these text messages fall within the categorical exception, my analysis will go on to show that they should have not been admitted. This is one of the “rare” cases where the hearsay statement does not meet the requirements of the principled approach as set out in the framework of analysis in Starr.
[48] In conclusion, this appeal is best viewed through the lens of the principled approach, either as an application of a modified common law exception or as a rare case under the Starr framework.
VI. Application to this Appeal
[49] Despite the fact that no voir dire was conducted at trial, the defence argues on this appeal that that I should consider the entire trial record in determining the issue of admissibility. The Crown does not take objection to this. I see no unfairness or other reason not to approach the appeal on this basis. I note the trial judge himself left the issue of admissibility potentially open depending upon the evidence that would later be heard.
A. Necessity
[50] I find that the admission of the text messages for the purpose of the truth of their contents was not necessary. M.M. was a cooperative and willing witness. She was articulate and communicated the evidence well. The video of her statement given to the police on May 4, 2015, was played and adopted by her in court. She had no difficulty in recalling the events or its details both in examination-in-chief and in cross-examination. She was shown the text messages while in examination-in-chief and could fully narrate the circumstances in which she sent them. M.M. was able to give a full account of what happened in her testimony as supplemented by the video. Finally, what she said in her texts was consistent with what she said the appellant said and did to her on the night in question. From this standpoint, the admission of the text messages for the truth of their content was unnecessary.
[51] There is another set of factors relevant to the necessity assessment. This is the fact that the hearsay came in the form of text messages and the circumstances in which these messages were made. As I noted earlier, the traditional spontaneous utterance exception was based on the assumption that the out-of-court statement was of superior quality to the in-court evidence. For 911 calls, the superior quality of the statements may be self-evident. First of all, such calls are recorded and the voice of the caller can be heard on the recording, which can then be played in court. This added value of the evidence can satisfy the necessity requirement: see R. v. Brown, 2015 ONSC 4121, 22 C.R. (7th) 118, at para. 39. In other cases, witnesses other than the declarant may testify as to the mental and emotional state of the declarant that demonstrates the superior value of the out-of-court statement.
[52] It is true that text messages can be described as a form of digital conversation: see R. v. Marakah, 2017 SCC 59, 142 W.C.B. (2d) 490. However, text messages in general do not have this inherently superior quality for the following reasons:
Text messages are simply written statements. They are often cryptic, casually composed, punctuated with short-forms, symbols, and errors. They are often open to misinterpretation by not only the trier of fact but indeed the recipient of the message.
Emotion and tone are absent from text messages (hence the use of emoticons by some people in texts).
Unlike a phone call or an in-person conversation, when one sends a text there is no assurance that the person will respond or even read the message in a timely fashion. This was the case here with respect to the texts to R.P., who only read them the next morning.
Sending a text requires some conscious forethought. While I appreciate how texting is described as a digital conversation, unlike oral communications, texting necessarily involves discrete steps of composition, typing, and sending. Put another way, texts are not as spontaneous as oral utterances.
Texts are open to potential manipulation and deceit. Unlike oral utterances, recipients of texts have little access to verbal or visual cues to detect dishonesty or inaccuracy. Given the very private nature of texts, they are sometimes sent with little reflection about the potential consequences of their content. In Marakah the Supreme Court of Canada noted the following at para. 36:
One can even text privately in plain sight. A wife has no way of knowing that, when her husband appears to be catching up on emails, he is in fact conversing by text message with a paramour. A father does not know whom or what his daughter is texting at the dinner table. Electronic conversations can allow people to communicate details about their activities, their relationships, and even their identities that they would never reveal to the world at large, and to enjoy portable privacy in doing so.
[53] Let me be clear, I am not saying that text messages could never satisfy the necessity requirement of the hearsay exception. Rather, I am saying that the inherent nature of texting is an important factor to consider.
[54] From my analysis of the authorities above, I also appreciate the argument that a finding of the spontaneity of the statement made in circumstances where the danger of fabrication is remote assures us of the superiority of the evidence and hence the necessity of its admission for the truth of its content. However, I do not find that compelling on the facts of this case. I will touch more upon this when I turn to the assessment of the threshold reliability of the statements. I note that threshold reliability and necessity work in tandem and weakness in one criteria may be offset by strength in another: Khelawon at paras. 77 and 86. For now, I will just state that on this record, given the nature of these texts and the circumstances in which they were created and sent, I am not convinced that these out-of-court statements are superior to the testimony given by M.M.
[55] As a result, I find that since necessity has not been made out, the text statements were not admissible under a modified exception for spontaneous utterances.
[56] If I am wrong and these text messages are admissible under the traditional conceptualization of the spontaneous utterance exception, I would exclude the evidence given that it is one of the rare cases where they should be excluded under the principled approach because they are unnecessary. The only real value of these texts comes not from the truth of their contents but as narrative as circumstantial evidence supporting the complainant’s credibility. It should not be admitted here for the truth of their content, where the declarant was able to testify and give a full and consistent account of what happened to her.
B. Reliability
[57] Under the principled approach, threshold reliability requires that the statement have sufficient circumstantial guarantees of trustworthiness to permit admission. Normally, a range of factors is considered under this test, including whether the declarant has a motive to lie. However, the traditional categorical exception of spontaneous utterances is more limited in its consideration of what makes the statement reliable and hence admissible. It must be shown simply that the statement was contemporaneous with and in response to an overwhelming event that left the declarant under such pressure or emotional intensity that fabrication can be discounted.
[58] In my view, the reliability assessment under the principled approach is generally preferable as well. In this regard, a case worthy of some further analysis is R. v. Nicholas, (2004) 2004 CanLII 13008 (ON CA), 70 O.R. (3d) 1 (Ont. C.A.). Nicholas was charged with a number of sexual assaults. One complainant was too mentally unstable to testify. However, she made a lengthy recorded 911 call a few minutes after the assault. The trial judge admitted it both as a spontaneous utterance and under the principled approach. Abella J.A. (as she then was) agreed with its admission under both doctrines although she disagreed with the trial judge’s decision to exclude it based upon balancing probative value and prejudicial effect. She agreed in a short discussion that the 911 call fell within the spontaneous utterance exception. In discussing why, she found simply that the call was made within minutes of the attack and that “there has been no suggestion that G.W. had any motive for misrepresenting what happened that night.” I agree that any motive to lie is an important consideration in assessing a statement’s reliability. Indeed, Abella J.A. emphasized it again when dealing with how the 911 call met the requirement of threshold reliability on the principled approach. However, strictly speaking, the consideration of a motive to lie is misplaced under the traditional hearsay exception. There is no requirement to do so. In my view, this case is an example that in certain circumstances, an analysis under the principled approach is superior and should be preferred.
[59] However, I am bound by the holding in Starr that the spontaneous utterance exception carries with it criteria that establish reliability within the meaning of the principled approach. Thus, I will measure these text messages up against the traditional criteria for the admission of spontaneous utterances. When I do, I find that these text messages lack sufficient adherence to these criteria to permit a finding of reliability. This, therefore, provides an additional reason for why the text messages should not have been admitted for the truth of their contents.
[60] Firstly, the only evidence that the texts were generated in a state of emotion from an overpowering event came from M.M. herself, the very person whose credibility was being challenged. There was no independent evidence supporting M.M.’s testimony. Unlike in Sylvain, there was no 911 recording or other witness that supported the existence of the shocking event, the declarant’s emotional response and the spontaneity of the statement. I do not say that there is a strict requirement for this but I cannot ignore that there is an element of bootstrapping in the trial judge’s approach. He found that the texts were a cry for help based largely upon the content of the texts themselves. This was decided at a time when the witness was still in examination-in-chief and had not yet been cross-examined.
[61] In addition, I find that M.M.’s testimony about the emotional state she was in at the time she sent the texts to be somewhat equivocal. She did testify that she was “freaking out” and “panicky”. But she also testified that she was trying to stay calm. Her testimony, her videotaped statement, and the content of her texts that evening indicate that she was able to do so. While no doubt this behavior was most courageous, accepting her testimony on this point makes it more difficult for me to conclude that M.M. was overpowered by her emotions such that the possibility of fabrication can be discounted. Put another way, firm support for this finding is lacking even on M.M.’s own evidence.
[62] Furthermore, there was no evidence that these texts were the complete record of her messaging activity at the relevant time. The texts were just screenshots of the exchanges M.M. showed the police. No officer testified in support of M.M. No police officer downloaded a complete record of her texts from that evening from her telephone. I agree with the respondent that M.M. was not questioned about other unrelated texts she may have sent to other people during this material time. Thus this case is somewhat distinguishable from D. (D.L.). That said, I am mindful that the onus for the admission of the hearsay was on the respondent. I am further mindful that the trial judge made his admissibility ruling before the defence had an opportunity to cross-examine M.M.
[63] The fact that a number of the texts contained redacted text exacerbates this problem. It is unclear why the texts were redacted. The defence did not object to it. No reason was given on the record for the redactions. Three texts to R.P. were redacted. Two texts sent at 12:32 a.m. and 12:33 a.m. were completely redacted. It is hard to resist the inference that the redacted portions were irrelevant to the charge. If so, the fact that M.M. was sending messages unrelated to the sexual assaults she said she was experiencing at the time would have been relevant to the issue of reliability, as it was in D. (D.L.). The texts between M.M. and R.C. also contained redactions. Their exchange contained five wholly or partially redacted texts. Furthermore, the exchange of texts between M.M. and R.C. is obviously incomplete. There is an initial text from R.C. at 12:04 a.m. which is clearly relevant as it refers to R.C. telling M.M. to call the police, but the prior portion of the text was not captured by the screen shot. Also, given that R.C. was already advising M.M. to call the police at the start of the exchange there must logically have been prior relevant texts sent by M.M. before that exchange that did not make it into the record.
[64] The trial judge characterized the texts as a cry for help. The respondent argues that the trial judge did not err in doing so. She argues this supports the conclusion that the spontaneity and the stress of the moment eliminated the opportunity to fabricate. However, a close scrutiny of the texts and the circumstances of their creation show that this characterization is not precisely accurate. The first text sent to R.P. is at 11:45 p.m. The texts continued until 12:35 a.m. In none of these one-way texts M.M. sends to R.P. does M.M. ever specifically ask for help. The texts are merely a running commentary as to what was happening to her – a commentary consistent with her testimony in court.
[65] R.C., who was awake and replying to M.M.’s texts, repeatedly told M.M. to call the police. However, in her texts, M.M. resists calling the police as suggested. The two exchanged more texts over the next half hour. The exchange ends with a text where M.M. resists a suggestion from R.C. that she bar the door. M.M. just replies at 12:35 a.m. “Nope I’m leaving early AF”. To which R.C. replies “Okay good text me if you need anything I’m going to sleep.” Of course, this behavior is not inconsistent with someone who has been sexually assaulted. The reactions of victims to sexual assault are varied and very individual. However, the texts as a whole cannot readily be characterized as a cry for help.
[66] With respect, I find that the trial judge erred in his conclusion that these text messages were a cry for help similar to 911 calls. In my opinion, these texts do not meet the traditional requirements for spontaneous utterances. Looking at the whole of the circumstances, the evidence does not reasonably support a conclusion that the text messages were a result of such overwhelming stress or emotion that fabrication could be discounted. Ultimately, the trial judge erred in admitting the text messages for the truth of their content because they did not have sufficient indicia of reliability.
C. Use of the Text Messages by the Trial Judge
[67] My conclusion that the trial judge erred in admitting the text messages as spontaneous utterances does not determine this appeal. As I already indicated, I find that the text messages could properly be admitted as part of the narrative and treated as circumstantial evidence. Certainly, in my view, the text messages had probative value in that they explained the unfolding of M.M.’s complaint to the authorities. As the evening progressed, she sought advice from her friends about what was happening. This narrative continued into the next day, when she had discussions with R.P. that ultimately led to the involvement of the school authorities and the police. M.M.’s lengthy and somewhat reluctant disclosure of the alleged sexual assault could support her position that she was happy with her living situation at the appellant’s home and would not have endangered it by making a false accusation of sexual assault. In addition, it placed the defence position that M.M. was angry at the appellant or the family for the time when she may have gotten into trouble for not coming home one night into context. On the other hand, it was also relevant to the defence position that M.M. was forced by her friend to make a false allegation of sexual assault to the authorities. The narrative of the disclosure as evidenced by the text messages could assist the trial judge in assessing the credibility of M.M. in this limited way. The key issue on appeal is: regardless of the erroneous admission of the text messages for the truth of their content, did the trial judge properly restrict his use of them in his decision?
[68] The trial judge states that the text messages were “corroborative” of M.M. As commonly understood, the term “corroboration” refers to evidence from a source other than the witness whose evidence is being challenged: see R. v. Zou, 2017 ONCA 90, 346 C.C.C. (3d) 490, at paras. 40-41; Paciocco at p. 186. M.M.’s text messages could not corroborate her own testimony, because both come from the same source.
[69] On this issue, I must address the ultimate disposition of the appeal in Khan (2017). In that case, Hourigan J.A. noted that while the trial judge did not expressly refer to the narrative as circumstantial evidence exception to the rule against prior consistent statements in deciding the case, it was clear this was the way in which he ultimately used the statement. This was so even though the trial judge in that case, like the case at bar, had admitted the statements for a hearsay purpose. Hourigan J.A. held that it was the “declaration part” of the statement that gave probative value to the complainant’s statement made at the police station. It provided context with which to evaluate the credibility and reliability of the complainant’s in-court testimony. Hourigan J.A. assessed the trial judge’s reasons as a whole, and unlike the summary conviction appeal judge, concluded that trial judge did not use the statements improperly in deciding the case. In other words, the trial judge did not use the statement for the prohibited inference that consistency enhances credibility or the inference that simply making of a prior consistent statement corroborates in-court testimony. As a result, Khan’s appeal was dismissed.
[70] In this case, looking at the reasons of the trial judge as a whole, I cannot similarly conclude that the trial judge made only proper use of the text messages. He admitted the text messages for the truth of their contents. He did not admit them as an exception to prior consistent statement exception like in Khan (2017). In his reasons, he held that the texts were “corroborative” of the complainant’s credibility. It is clear that the trial judge used the text messages as evidence of their truth of their contents in order to corroborate M.M.’s the evidence. Unlike Khan, there is nothing in the trial judge’s reasons that could reasonably support the argument that he limited his approach regarding his use of the text messages. He does not refer at all to the circumstances in which the texts were made or how the narrative of the disclosure supported M.M.’s credibility. I can only decide this appeal based upon what the trial judge said. Even assessing the trial judge’s statements in the context of the reasons as a whole, the evidence presented, and the submissions of the parties, I find that the trial judge made a reversible error in admitting the text messages under a hearsay exception and then using them improperly in deciding the case.
[71] The error made by the trial judge in this case is the same error made by the trial judge in R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788. In Dinardo, the accused taxi driver was charged with sexual assault in connection to a ride he gave to the complainant, a woman with Down’s syndrome. The complainant had given a number of statements to a teacher and couple of employees who worked in the residence where she lived. The Supreme Court of Canada was faced with language on the part of the trial judge similar to that found in this case which related to the impact of a complainant’s prior statements to others. The trial judge stated the prior statements were a form of “corroboration”. The Court held that a new trial should be ordered due to the misuse of these prior statements.
[72] The case of Mackenzie is also helpful. In that case the Court concluded that the trial judge erred in finding “corroboration” of the complainant’s allegations of assault in her prior consistent statements to the police and her daughter which were admitted as spontaneous utterances. The court held that the trial judge’s use of those statements were improper and ordered a new trial. I should note that while in Khan (2017), the spontaneous exception to the hearsay rule was not considered on the appeal, the court nonetheless agreed with Paciocco that MacKenzie was correctly decided and stood for the proposition that statements admitted under this hearsay exception had limited permissible uses. The Court specifically held there was no added value to the fact the same statement was repeated. The value, if any, comes from the context and circumstances in which the admissible hearsay statement was made. See also Sylvain at paras. 40-43.
[73] In summary, I cannot conclude based upon looking at these reasons as a whole that the trial judge used the text messages for the limited purpose as narrative as circumstantial evidence.
D. Application of the Proviso
[74] Even if I find an error in law, as I have here, I may nevertheless uphold the verdict pursuant to the curative proviso found in s. 686(1)(b)(iii) of the Criminal Code if I am satisfied no substantial wrong or miscarriage of justice has occurred. In this case, however, I am not satisfied that the respondent has shown that the admission of the text messages for the truth of their contents and the trial judge’s error in using them was harmless, or that the Crown’s case was overwhelming: see R. v. Sarrazin, 2011 SCC 54, [2011] 3 S.C.R. 505; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 93-94.
[75] M.M.’s credibility was an important issue. While the trial judge had other reasons to accept her evidence, his wrongful admission and use of the text messages played a significant role in his acceptance of her credibility. The trial judge expressly relied on the corroborative value of the complainant’s text messages. In my view, this error was not harmless. Further, the case against the appellant was not overwhelming. While the trial judge did not accept the testimony of the appellant or his witnesses, the appellant mounted a vigorous defence. In R. v. Zou at para. 51, which involved similar circumstances, the Crown rightfully did not argue that the curative proviso of the Code could be applied when the trial judge wrongfully used a prior statement as confirmatory. See also Dinardo at para. 40.
E. Conclusion
[76] This appeal against conviction is allowed and a new trial is ordered. The appellant is ordered to appear at 10 a.m. on February 21 in J. court at the Ontario Court of Justice, Old City Hall, 60 Queen Street West, Toronto, for the purpose of setting a date for the new trial.
Justice S. Nakatsuru
Released: February 6, 2018
COURT FILE NO.: CR-17-10000013-00AP
DATE: 20180206
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
N. W.
Appellant
REASONS FOR JUDGMENT
NAKATSURU J.
Released: February 6, 2018