COURT FILE NO.: CR-18-40000029-00AP
DATE: 20190417
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
NGOZI NWOKO
Appellant
C. Sweeny, for the Respondent
C. Sewrattan, for the Appellant
HEARD: February 13, 2019.
REASONS FOR JUDGMENT
On appeal from the convictions entered on January 5, 2018 by the Honourable Justice L. Pringle of the Ontario Court of Justice.
SCHRECK J.:
[1] The common law hearsay rule provides that an out-of-court statement made by a witness is generally not admissible for its truth. The rule applies even if the witness subsequently repeats the prior statement during his or her testimony. In fact, in that situation the prior statement is inadmissible not only because it is hearsay, but also because it is irrelevant, self-serving and lacks independence. The law recognizes that repetition of a statement does not make it more likely to be true. However, as with most evidentiary rules, there are exceptions.
[2] These rules are at issue in this case, which arose in the following circumstances. Ngozi Nwoko had invited an acquaintance to his home for dinner. While she was at his home, there was sexual contact between them. Mr. Nwoko maintained that the sexual contact was consensual. The complainant said that it was not. Shortly after the sexual contact occurred, the complainant sent a text message to a person she knew in which she called Mr. Nwoko a rapist. The following day, the complainant sent Mr. Nwoko a text message alleging that he had violated her body. Mr. Nwoko responded with an apology.
[3] Mr. Nwoko was charged with sexual assault and unlawful confinement and tried in the Ontario Court of Justice. In her reasons for judgment finding him guilty, the trial judge referred to the complainant’s text messages. Mr. Nwoko appeals his convictions on the basis that the trial judge’s use of the text messages violated the rule against the admission of prior consistent statements.
[4] I would dismiss the appeal. While the complainant’s text messages were not admissible for their truth, the trial judge did not rely on them for that purpose. As I will explain, the use she made of them was legally permissible.
I. EVIDENCE
A. The Complainant’s Version of Events
(i) The Visit to the Appellant’s Home
[5] The complainant, C.H., first met the appellant at a Seventh Day Adventist conference in Texas in 2015. She was 21 years old at the time and the appellant was 32. Although both of them were from Toronto, they had never met before.
[6] The appellant and the complainant did not see each other for some time after returning to Toronto. On July 22, 2015, the complainant was experiencing a mental health crisis. She texted the appellant and told him that she was thinking of ending her life. He responded by dissuading her.
[7] The next day, the appellant and the complainant spoke on the telephone and they agreed that the complainant would visit him at his home and he would make dinner for her. The complainant travelled to the appellant’s home by bus and texted him several times during the journey to discuss which bus she should take. At one point, she texted to him that she would be leaving his home at 11:45 p.m. and said, “it is ok, I know two ways to get home”. The appellant met the complainant at the bus stop at some time after 9:30 p.m. and they walked to his home together.
(ii) The Alleged Offences
[8] The complainant testified that while at the appellant’s home, he put his hand on her leg and rubbed it. She said “What are you doing? I didn’t come her for anything.” He then pulled her onto his lap. She said, “Stop, I didn’t come here for this”. The appellant pulled her shirt up, pulled her bra down and licked her breast. He then pulled her onto the bed, where he continued to suck her breast and put his fingers in her vagina. She said “Stop, I do not consent to this” and “You are hurting me.” He replied, “Oh, I’m going to be gentle.” According to the complainant, she tried to get up but he pinned her down and removed her pants. He unzipped his own pants, stroked himself and removed his shirt. She told him that they were not going to have sex. He told her that he would not do it without a condom and told her that he loved her. The complainant repeatedly said that she had to go the washroom. Eventually, he allowed her to get up and get dressed. She then went to the washroom.
B. The Text Message to R.R.
[9] In the washroom, the complainant texted R.R., a worker at the supportive housing unit where she lived. The text, which was sent at 11:01 p.m., said “This guy is a fucking rapist” and then “Can you do me a favour?” and “actually shit I don’t think cars can come here.”
[10] R. testified that she was asleep when she received the complainant’s texts, but woke up and responded about 10 minutes later by telephoning the complainant. The complainant asked R. if she could drive her home. They then discussed arranging to have a taxi pick the complainant up.
[11] At one point, R. asked to speak to the appellant. She told him that she was an adult and wanted to ensure that the complainant got home safely. The appellant said that this was no problem and that he had no intention of hurting the complainant. According to R., he sounded normal and not nervous.
[12] When the taxi arrived, the complainant left the appellant’s home.
C. The Appellant’s Account
[13] The appellant testified that after the complainant arrived at his home, he went to the kitchen to prepare dinner. When he returned, the complainant was on her phone so he went to his computer to look at his thesis (the appellant was a graduate student in law at the time). The complainant asked him what he was looking at. He told her, and she came over and sat on his lap to look at the thesis.
[14] The appellant went to the kitchen to check on the food. When he returned, the complainant was lying on the bed using her phone, so he continued to edit his thesis. The complainant told him that he led a boring life and did not talk. He went to the bed and lay down beside her. She stroked his beard and cheeks and told him that he was cute. She caressed his nipples and he did the same to her. The complainant then removed her own top and he did the same. She asked him to help her unhook her bra. He kissed her breast and she touched his genitals and he touched hers. She lifted her bottom and he pulled her pants off. According to the appellant, when he kissed the complainant’s breast, she moaned and was obviously enjoying herself.
[15] After about five minutes, the complainant told the appellant that she was hungry. He went to the kitchen and brought her some rice. She told him that it was not the type of rice she wanted, but that she would have some apples and fruit juice, which he gave her. The complainant asked him how she would get home. He told her that he would walk her to the bus stop, but she said she wanted a faster way to get home. He explained to her that he did not have money to get her a taxi. This appeared to make her angry and upset with him.
[16] The complainant went to the washroom. According to the appellant, she appeared to be sad and angry. He could hear her on the phone in the washroom telling somebody his address. Later, she gave him the phone and the person on the other end said that the complainant needed to come home as soon as possible. He replied that this had already been arranged.
[17] A taxi arrived for the complainant and the appellant walked her out of the house. She hugged him goodbye and said that the next time she came, she would have the other type of rice.
D. The Text Messages Between the Complainant and the Appellant
[18] After the complainant went home, the appellant sent her several messages throughout the night and the following morning. After he sent messages saying “Please talk to me babe” and “hope you’re good”, the following text message exchange took place at 8:43 a.m.:
COMPLAINANT: You are a disgusting man. I do not love you. I thought you were a decent person. Who worshipped God.
You have no patience and disrespected and violates [sic] my body. If you had a daughter you would never want to be treated like you treated me yesterday. Please do not communicate with me every [sic] again.
I am now damaged and traumatized because of you.
APPELLANT: I’m so sorry [C.]. Please I won’t treat you that way again.
[19] Later, the appellant sent another message which said:
Dear [C.], Please find a place in your heart to forgive me because I didn’t mean to hurt your feelings. I’ll never do that again. We can only get it right next time. Please don’t shut your heart against me.
[20] According to the appellant, he was stunned and shocked when he received the complainant’s texts. He could not imagine somebody with whom he had had such a pleasant evening sending texts of that nature and did not understand why she had done so. He concluded that she had come to regret the consensual sexual contact they had engaged in. As a result, he sent her an apology. What he meant by it was that he was sorry that things may have progressed too fast and that she had come to have regrets. He was trying to let her know that the next time, things would be slow and that he was happy to continue their relationship without sexual touching.
[21] During his testimony, the appellant explained that his father had taught him that a responsible man must be ready to apologize regardless of whether he had done anything wrong.
[22] A few days later, the complainant went to the police and the appellant was charged.
II. ANALYSIS
A. Overview of the Appellant’s Position
[23] The appellant submits that the trial judge made improper use of two prior consistent statements by the complainant. The first was her text message to R. in which she said “This guy is a fucking rapist.” The second was her text message to the appellant in which she said “You are a disgusting man” and that he had disrespected and violated her body. The appellant accepts that both statements were admissible and that there were proper uses that could be made of them, but submits that the trial judge went beyond those proper uses.
B. Applicable Legal Principles
[24] Prior consistent statements of a witness are presumptively inadmissible: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 36; R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5. However, this rule is subject to a number of exceptions. The recognized exceptions that potentially arise in this case are the following:
(1) Prior consistent statements as circumstantial evidence;
(2) Recent fabrication;
(3) Prior consistent admissible hearsay;
(4) Prior consistent statements that provide context for admissible statements;
(5) Pure narrative;
(6) Narrative as circumstantial evidence.
See D.M. Paciocco, “The Perils and Potential of Prior Consistent Statements: Let’s Get It Right” (2013), 17 Can. Crim. L. Rev. 181, at p. 182.
[25] While there are a number of categorical exceptions to the rule, I prefer the approach recommended by Doherty J.A. in his separate concurring reasons in R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, at para. 59:
The admissibility of a prior consistent statement, like the admissibility of other forms of evidence, turns on the relevance, materiality and probative value of the evidence. When a prior consistent statement is tendered, the admissibility inquiry should focus on these broader considerations rather than the technicalities of established exceptions. This change in focus would not produce any significant change in the circumstances in which the prior statement would be admitted. The existing exceptions are to a large extent a product of the application of the broader principles underlying the admissibility of evidence.
[26] An understanding of the exceptions requires an understanding of the reasons behind the rule that generally prohibits prior consistent statements, of which there are two. The first is that such statements are made out of court when the witness is not under oath and cannot be observed by the trier of fact. In other words, they are a form of hearsay and, as such, are presumptively inadmissible when tendered for their truth: Paciocco, at pp.184-185; Dinardo, at para. 36. The second is that insofar as they are merely a repetition of what the witness testifies to in court, they lack probative value. However, there is a danger that a trier of fact may consider the fact that the witness has said the same thing on a prior occasion as corroborative: Paciocco, at pp. 185-186; Dinardo, at para. 40.
[27] An exception will apply if the prior consistent statement is admissible for its truth despite being hearsay, or if the fact that the statement was made on a prior occasion has probative value. Which exception may apply will depend on the purpose for which the prior consistent statement is being tendered, and the statement may be admissible for one purpose but not another: Paciocco, at pp. 182-184. For example, if the statement is admitted because the fact that it was made has some probative value, this does not mean that the trier of fact may rely on it for its truth.
C. Permissible Uses in This Case
(i) What the Parties Agree On
[28] In this case, the parties agree that the prior consistent statements were admissible and that it was open to the trial judge to rely on them for certain limited purposes which I will outline later in these reasons. All of the exceptions relate to the probative value arising from the fact that the prior consistent statements were made and the times at which they were made. The parties also agree that none of the hearsay exceptions arise in this case. In other words, they agree that while it was open to the trial judge to rely on the fact that the statements were made, it was not open to her to rely on them for the truth of their contents. As will be seen, the real dispute between the parties is whether or not the trial judge relied on the prior statements for their truth. The appellant submits that she did. The respondent submits that she did not. Both agree that it would have been an error for her to do so.
(ii) The “Rapist” Text Message
[29] There is no issue that the trial judge was entitled to rely on the complainant’s text message to R. as narrative and as circumstantial evidence that she was upset. Indeed, there appears to have been no issue that she was upset, although there was a dispute as to why she was upset. It was the Crown’s position that she was upset because she had been sexually assaulted while it was the defence position that she was upset because the appellant was not going to pay for a taxi for her, or perhaps because she had come to regret the consensual sexual activity she had engaged in.
[30] The fact that the complainant was upset had probative value. It is well established that a trier of fact is entitled to rely on a complainant's post-event emotional state as confirmation of her allegations: R. v. J.A.A., 2010 ONCA 491, 261 C.C.C. (3d) 125, at paras. 17-8, rev’d on other grounds, 2011 SCC 17, [2011] 1 S.C.R. 628; R. v. Varcoe, 2007 ONCA 194, 219 C.C.C. (3d) 397, at para. 33.
[31] The parties also agree that the text message to R. was admissible to rebut the appellant’s evidence that the complainant had been enjoying herself. As the Crown argued, if she had been enjoying herself, then there would have been no reason for her to send texts to R. accusing the appellant of being a rapist and asking for a ride so that she could leave immediately.
[32] It is common ground, however, that the trial judge was not entitled to use the texts for their truth, that is, as direct evidence that the appellant was a rapist and had sexually assaulted the complainant.
(iii) The “Disgusting Man” Text Messages
[33] The parties agree that the complainant’s texts to the appellant were admissible as narrative and as further circumstantial evidence that she was upset. The Crown submitted that if the complainant had been enjoying herself the previous evening, it made no sense that she would send texts of this nature to the appellant the following morning.
[34] It is also agreed that the complainant’s texts were admissible to give context to the appellant’s apology.
[35] Once again, the parties agree that the complainant’s texts were not admissible for their truth, that is, as direct evidence that the appellant had “violated her body”.
D. The Trial Judge’s Use of the Prior Statements
(i) “Her testimony … was in sequence with her text messages”
[36] In his factum, counsel for the appellant focussed on several passages of the trial judge’s reasons for judgment which he submitted demonstrate that she had misused the evidence. The first passage counsel referred to was under the heading “Reasonable Doubt and the Evidence as a Whole” (at pp.15-16):
Moving to the third branch of W.(D.), I found that on the whole, Ms. H. was a strong and credible witness. Her testimony about what happened flowed logically and was in sequence with her text messages both to Ms. R. on July 22nd and then to Mr. Nwoko on July 23rd. Her texts to Ms. Robinson and her early departure from the residence presented a compelling narrative that was in accordance with her testimony that Mr. Nwoko sexually assaulted her, and was consistent with the other evidence in the Crown’s case.
[37] In my view, this passage does not support the appellant’s submission that the trial judge relied on the “rapist” statement for the truth of its contents. Rather, she was noting that the complainant’s behaviour and demeanour were consistent with her evidence. The complainant had gone to the appellant’s home voluntarily with the intention of taking a taxi home. The text messages showed that at some point, she became upset, stopped wanting to be there and decided to leave earlier than she had planned. This sequence of events was consistent with her testimony.
(ii) “Together with her texts … [her] evidence … made sense”
[38] The appellant also relies on the following passage from the trial judge’s reasons, under the heading “Analysis of Ms. H.’s Evidence” (at p. 11):
Together with her texts to R. that Mr. Nwoko was a “fucking rapist” and she wanted to leave around 11 p.m. (well before she told Mr. Nwoko she had wanted to leave, at 11:45), Ms. H.’s evidence that Mr. Nwoko had sexually assaulted her made sense. The photographs of her eye beginning to swell were also consistent with her account that her eye was sore, but only began to swell after the event. Finally, Ms. H.’s evidence fit with Mr. Nwoko’s apology to her, which on its face, appeared to be an apology for sexually assaulting her.
[39] The appellant submits that this paragraph was intended as an enumeration of the evidence that corroborated the complainant’s testimony and therefore demonstrates that the trial judge used the prior consistent statements as corroborative of the complainant’s account. I disagree. The trial judge was merely noting, as she had elsewhere in her reasons, that the complainant suddenly became upset and changed her plans, which made sense if she had been sexually assaulted as she claimed.
[40] The trial judge’s use of the evidence can be contrasted with the use that was made in R. v. N.W., 2018 ONSC 774, on which the appellant relies. As in this case, the complainant in N.W. sent text messages alleging a sexual assault at a time proximate to when the alleged offence took place. As in this case, the trial judge viewed the messages as supporting the complainant’s credibility, a use which this court on a summary conviction appeal found to be in error. However, unlike in this case, the trial judge in N.W. had expressly admitted the text messages for their truth and relied on them for that purpose. Having concluded that the messages were not admissible for their truth, it is not surprising that this court concluded that the evidence had been used improperly.
(iii) “Ms. H.’s message … was a powerful expression of her position”
[41] The third passage the appellant takes issue with is under the heading “Analysis of Mr. Nwoko’s Evidence” (at p. 14):
I agree with the Crown that Ms. H.’s message to Mr. Nwoko the next morning was a powerful expression of her position that the events of the night before had been anything but pleasant or consensual. She made it clear that she thought he was a disgusting man, that he had violated her body, and that she was damaged and traumatized because of the way he treated her.
[42] This paragraph, on its own, suggests that the trial judge was relying on the “disgusting man” message for its truth. However, it must be read together with what immediately followed:
On their face, Mr. Nwoko’s responses appeared to be a clear acknowledgement of the sexual assault that Ms. H. said took place, and an apology for it.
[43] When both paragraphs are read together, it is clear that the trial judge was relying on the complainant’s text messages to give context to the appellant’s apology, a use which the appellant agrees was permissible. In response to a clear assertion by the complainant that he had violated her body, the appellant apologized. The fact that this portion of the trial judge’s reasons is found in the section analyzing the appellant’s evidence further supports my conclusion that the trial judge was not improperly using the impugned evidence to support the complainant’s credibility.
(iv) “Her evidence was consistent … with the messages between her and Mr. Nwoko”
[44] The appellant also relies on the following passage from the beginning of the trial judge’s reasons (at p. 2):
Ms. H. was a strong and credible witness. Her evidence was consistent with that of the other Crown witnesses, and with the messages between her and Mr. Nwoko the next morning. I believed her evidence.
[45] The messages between the complainant and the appellant the next morning included his apology in the context of her accusations. If his apology is viewed as an admission, as the trial judge found that it was, then it was consistent with the complainant’s evidence that he had sexually assaulted her.
(v) “No apparent motive for Ms. H. to lie”
[46] The portion of the reasons that provide the strongest support for the appellant’s position was the following (at p. 11):
There is no onus on Mr. Nwoko to explain why Ms. H. might call him a rapist or lie to Ms. R about that: see R. v. Krack (1990), 1990 CanLII 10976 (ON CA), 56 C.C.C. (3d) 555 (Ont. C.A.). However, an apparent absence of motive can be taken into account in the fact finding process, (see R. v. Jackson, [1995] O.J. No. 2471 (Ont. C.A.)). There was no apparent motive for Ms. H. to lie here.
The trial judge’s consideration of whether the complainant had a motive to lie to Ms. R. suggests that she was evaluating the truth of the prior consistent statement. If the evidence was being used for non-hearsay purposes, whether or not the statement was true should not matter.
[47] While this portion of the trial judge’s reasons, read in isolation, suggests that she relied on the complainant’s statement to Ms. R. for its truth, on reading the reasons as a whole I am satisfied that the trial judge used the evidence properly. It was the defence position that the complainant lied to Ms. R. in order to get her to send a taxi because she did not want to take the bus. The trial judge was of the view this would be “a very big lie to achieve the very small end of a ride home” and concluded that this suggested motive “seems unlikely, and was not anchored in the evidence in any meaningful way.” In this sense, whether or not the complainant had a motive to lie to Ms. R. was relevant, not because the prior statement was being relied on for its truth, but because it addressed the defence submissions. The trial judge’s use of the prior statement is similar to the use that can be made in situations where there is an allegation of recent fabrication. The prior statement can be relied on to neutralize the allegation, but not for the truth of its contents: Paciocco, at p. 191; Stirling, at para. 5; R. v. D.B., 2013 ONCA 578, 310 O.A.C. 294, at paras. 35-38.
E. Conclusion
[48] Having carefully read the trial judge’s reasons as a whole, I am not persuaded that she relied on the prior consistent statements for their truth, nor did she conclude that because the complainant made her allegations more than once, they were more likely to be true. Her use of the evidence was carefully limited and did not go beyond what was permissible.
[49] I would also make the following observation. In his article cited above, Justice Paciocco wrote (at p. 215):
Lawyers must do their part. Lawyers, of course, have a responsibility to avoid presenting inadmissible evidence. The general rule relating to prior consistent statement is exclusionary. Admission is the exception. Lawyers should therefore refrain from leading prior consistent statements without securing a ruling permitting their admission into evidence. Judges should therefore insist before prior consistent statements are presented that counsel alert the judge of its intention to do so, identifying the exception and explaining the use they intend to make of the prior consistent statement.
Unfortunately, this was not done in this case. Had it been, the disputes about how the evidence could be and was used would likely have been avoided. I do not point this out to be critical of trial counsel of the trial judge, but merely to illustrate the wisdom of Justice Paciocco’s advice.
III. DISPOSITION
[50] The appeal is dismissed.
Justice P.A. Schreck
Released: April 17, 2019.
COURT FILE NO.: CR-18-40000029-00AP
DATE: 20190417
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
NGOZI NWOKO
REASONS FOR JUDGMENT
P.A. Schreck J.
Released: April 17, 2019.