Court File and Parties
Court File No.: CR-17-17 Date: 2019-06-25 Ontario Superior Court of Justice
Between: Her Majesty The Queen – and – D.M., Defendant
Counsel: Lyndsay Jeanes, for the Crown Stephen Whitzman, for D.M.
Heard: June 24, 2019
Ruling on Admissibility of Prior Consistent Statement of the Defendant
Restriction on Publication: Pursuant to s. 486.4(1) of the *Criminal Code*, no information that could identify the victim or a witness in this case shall be published in any document or broadcast or transmitted in any way.
Boswell J.
[1] In this application the court is asked to rule on the admissibility of a prior consistent statement of the defendant. Specifically, a denial he purportedly made when first confronted with his alleged criminal acts.
Overview
[2] W.C. is a pleasant, happy-go-lucky, young man. Though twenty-one years old, he is developmentally challenged and functions, intellectually, at the level of about a five to ten year old child.
[3] D.M. is alleged to have sexually assaulted and sexually exploited W.C. when W.C. was 17 and/or 18 years old. W.C. has testified that D.M. persuaded him to perform fellatio on him on two occasions and anally penetrated him on three occasions.
[4] W.C. first disclosed D.M.’s alleged conduct to his father, S.C., in March 2016. S.C. almost immediately contacted D.M. by cell phone to confront him about his son’s allegations. The Crown adduced evidence from S.C. about the telephone call. S.C. testified that he angrily asked D.M. “what the hell did you do to my son?” The cell signal fell off and the call dropped. D.M. immediately returned the call. Again S.C. asked, “what the hell did you do to my son?”
[5] The Crown did not adduce evidence of D.M.’s reply. The Crown’s case has concluded. D.M. intends to testify. He wants to tell the jury what his reply was to S.C.’s question. The Crown objects.
The Reaction in Issue
[6] There is no formal record of the phone calls between S.C. and D.M. There is no video or audio recording and no contemporaneous notes taken by the participants. When I say participants, two – D.M. and S.C. – might immediately come to mind. In fact, S.C. was at a hunt camp near Timmins when W.C. disclosed what D.M. allegedly did to him. S.C. had his cell phone on its speaker phone function during the calls with D.M. The content of the calls was heard not only by S.C., but also by W.C., their neighbour S.R. and his nephew C.M.
[7] D.M. is expected to testify that what he said in reply when first confronted with the allegation of sexually assaulting W.C. is, “I didn’t do anything wrong…I don’t know where this is coming from.” There is some dispute, however, about whether his anticipated testimony is an accurate reflection of what he said.
[8] S.C., W.C., S.R. and C.M. all testified for the Crown. They were not asked about D.M.’s reaction when confronted with the allegations of sexual abuse, given that D.M.’s response is presumptively inadmissible as a prior consistent statement and given that his application to admit his response had not yet been heard.
[9] That said, each of those witnesses testified at the preliminary hearing. Each of S.C., S.R. and C.M. was asked about the content of the phone call between S.C. and D.M. Each agreed, on cross-examination, that D.M. had essentially denied the accusation of sexual abuse. But there was no consensus on exactly what was said.
[10] During the preliminary hearing, S.C. was asked in cross-examination whether D.M. denied sexually abusing W.C. When pressed he said, “yeah, yes he did”. In re-examination, he said the only thing he could recall D.M. saying was that he could not believe the allegations against him.
[11] C.M. said, under cross-examination at the preliminary hearing, that D.M. had denied the allegations against him. In re-examination he said he could only recall D.M. saying something like, “I wouldn’t have done that.”
[12] Finally, S.R. said, under cross-examination at the preliminary hearing, that he recalled D.M. saying that he “didn’t do it”. But in re-examination he said all he could recall was D.M. saying something like, “You wouldn’t think I would do something like that.”
The Legal Framework
[13] In a criminal trial, evidence will be admitted so long as it is relevant, material and not otherwise captured by a specific rule of exclusion: R. v. Candir, 2009 ONCA 915, at para 46.
[14] As the foregoing rule portends, evidence that is relevant and material may nevertheless not be admitted at times. There are a variety of reasons why that may be so.
[15] One area where arguably relevant and material evidence is presumptively excluded involves prior consistent statements. As a general rule, prior, out-of-court statements made by a witness that are consistent with his or her trial testimony, are not admissible.
[16] In the result, accused persons, like D.M., are generally not permitted to tender into evidence their own prior, out-of-court, exculpatory statements, which is just what D.M. wishes to do here.
[17] The justifications for the general rule include:
a) The hearsay nature of the statements. Where the accused testifies, they are generally considered self-serving and lacking in probative value. If admitted, they constitute impermissible oath-helping. Where the accused does not testify, an additional concern arises: an accused ought not to be entitled to put his own evidence of a defence before the jury without being on oath and subject to cross-examination; b) The potential that the statements could be fabricated; c) The minimal, if any, probative value of the statements. It is axiomatic that the veracity of a statement is not enhanced by the number of times it is repeated; and, d) The risk that admission may negatively affect trial efficiency.
See R. v. Edgar, 2010 ONCA 529, at paras. 25-34 and R. v. Liard, 2015 ONCA 414, at paras. 44-45.
[18] Prior consistent statements, as I have noted, are excluded essentially because they typically offer nothing of value to the truth finding function of the trial. But occasionally, a prior consistent statement does have real value to the live issues in a case. In those circumstances, the truth-seeking function of the trial will be enhanced, rather than hindered, by the admission of the statement. In the result, certain recognized exceptions to the presumptive exclusionary rule have developed.
[19] As Watt J.A. observed in R. v. M.C., 2014 ONCA 611, at para. 60:
…the exceptions to the prior consistent statement rules tend to exist where the purposes that underpin the general exclusionary rule would not be served by excluding the evidence…Typically, the exceptions permit introduction of the prior consistent statement where proof of it is relevant without an inference of credibility enhancement because the witness said the same thing previously. (Internal citations omitted).
[20] The “traditional” exceptions where prior consistent statements are considered to have probative value above and beyond mere repetition include:
a) Where the statement plays a useful part in the narration of other relevant and admissible evidence; b) Where the statement is introduced to rebut an allegation of recent fabrication; c) Where the statement operates as circumstantial evidence of the state of mind of the statement-maker at the time the offence was committed; d) Where the statement forms part of the identification narrative of the witness; and, e) Where the statement is part of the res gestae. Broadly speaking, this includes statements made naturally and spontaneously, without deliberation, during the course of an event. In other words, where the statement itself forms part of the incident giving rise to the charge.
See R. v. Edgar, as above, at para. 35 and R. v. Liard, as above, at para. 46.
[21] About a decade ago the Court of Appeal supplemented these traditional exceptions with a principled exception. In R. v. Edgar, as above, at para. 72, Sharpe J.A., described the principled exception as follows:
It is open to a trial judge to admit an accused’s spontaneous out-of-court statements made upon arrest or when first confronted with an accusation as an exception to the general rule excluding prior consistent statements as evidence of the reaction of the accused to the accusation and as proof of consistency, provided the accused takes the stand and exposes himself or herself to cross-examination.
[22] The so-called “Edgar exception” is premised on the notion that spontaneous exculpatory statements made by an accused person when first confronted by the police with an accusation, may be probative. Where probative, they should be admitted, unless for some reason their admission would engender prejudice substantially exceeding their probative value. Admissibility, however, comes with the condition that the accused testify. Where the accused testifies and is exposed to cross-examination, the hearsay concerns associated with his or her prior consistent statements “evaporate”: Edgar, para. 68.
[23] In R. v. Kailayapillai, 2013 ONCA 248, Doherty J.A. explained the Edgar exception and the nature of statements admitted in accordance with it, at paras. 58-61, as follows:
…An accused's prior consistent statement can be characterized as the accused's "reaction" when confronted with an allegation. As a matter of common sense and human experience, one's reaction to an allegation may assist in determining the truth of that allegation. Similarly, where one's reaction takes the form of a statement, the consistency between that statement and one's trial testimony can enhance the credibility of the trial testimony.
Not all reactions to allegations have probative value. The English cases relied on in Edgar refer to statements made by an accused "when first taxed with incriminating facts". Edgar itself refers to statements that are "spontaneous" and made "upon arrest or when first confronted with an accusation".
The probative value of the accused's prior consistent statement under the Edgar analysis lies in its ability to truly reflect the individual's honest and genuine reaction to the allegation. Statements made in circumstances where it cannot be said that the statement reflects an honest reaction do not have probative value. The circumstances surrounding the making of the statement are crucial to the determination of admissibility under the Edgar analysis.
Statements made by an accused long after he or she has had the opportunity to reflect on the situation and consider his or her response to an allegation do not provide the kind of spontaneous response capable of giving a true reflection of the accused's reaction to the allegation.
[24] The notion that spontaneity is at the heart of the Edgar exception was reinforced by the Court of Appeal in R. v Liard, as above, where Laskin J.A. said, at paras. 62-64:
The requirement that the accused's statement be spontaneous is the critical requirement for admissibility under the Edgar exception. Spontaneity is what gives the statement its probative value and justifies its admission. A spontaneous reaction is more likely "to truly reflect the individual's honest and genuine reaction to the allegation", and thus is more likely to be a reliable reaction. See Kailayapillai, at para. 60. Conversely, when an accused has an opportunity to "think things through", the spontaneity of the statement is diminished, and in some cases eliminated altogether.
No single consideration, no single point in time, determines whether the spontaneity requirement has been met. The passage of time between the crime and the accused's reaction to an accusation of committing it, and any intervening events, are undoubtedly relevant. But spontaneity lies along a spectrum. And along that spectrum, the degree of spontaneity may vary. In Edgar itself, the accused made three statements -- the third, four hours after he was arrested. Sharpe J.A. held that all three statements were admissible. In R. v. Johnson, 2010 ONCA 646, 262 C.C.C. (3d) 404, in an obiter comment at para. 71, Rouleau J.A. said he would have admitted under the Edgar exception a statement given by the accused on arrest, even though the arrest took place more than a month after the victim's disappearance and over a week after her body was discovered.
Thus, in determining whether an accused has satisfied the spontaneity requirement, the trial judge must consider all the circumstances of the case -- the passage of time, any intervening events, and the making of the statement itself. Importantly, as Sharpe J.A. pointed out in Edgar, at para. 69, when in doubt about spontaneity, the trial judge should admit the statement and allow the jury to assess its weight. Proper jury instructions can eliminate any risk of the jury's misuse of the statement.
[25] The premise underlying the Edgar exception may be illuminated by a case-specific example. The Crown tendered evidence that W.C. began to cry as he disclosed the allegations of sexual abuse to his father. Indeed, he began to sob. His father testified that crying was unusual for W.C., whom he described as generally happy-go-lucky. The purpose of tendering evidence of W.C.’s demeanour when describing the allegations of sexual abuse was to shore up the credibility of his allegations. In other words, W.C.’s demeanour was consistent with someone genuinely distraught over what had happened to him. The same can be said of D.M’s spontaneous reaction when first confronted with allegations of sexual abuse. As observed in Kailayapillai and Liard, the spontaneous reaction of an accused person when first confronted with allegations of criminality may reflect his honest and genuine reaction to it.
[26] In summary, where an accused person seeks to tender into evidence his or her prior exculpatory statement(s) pursuant to the Edgar exception, he or she must satisfy three prerequisites:
(i) The accused must testify; (ii) The statement must be made when the accused was arrested or when first accused of committing a crime; and, (iii) The statement must be spontaneous.
[27] I note that statements admitted under the Edgar exception are not admitted for the truth of their contents. They are “evidence of the reaction of the accused, which is relevant to the credibility of the accused and as circumstantial evidence that may have a bearing on guilt or innocence: Edgar, para. 72. See also R. v. Badhwar, 2011 ONCA 266, at para. 17.
The Positions of the Parties
[28] Defence counsel advances a two-pronged argument. First, he asserts that D.M.’s denials when first confronted by S.C. about abusing W.C. were spontaneous and admissible under the Edgar exception.
[29] Second, he submits that D.M’s denials ought to be admitted as a matter of trial fairness. The Crown tendered evidence that S.C. demanded to know, twice, “what the hell [D.M.] had done to his son.” The Crown tendered S.C.’s accusations as “narrative”. The jury will undoubtedly be wondering what D.M. said in response. He ought now to be permitted to complete the narrative with his response, and to essentially rebut any suggestion that he is denying the allegations for the first time at trial.
[30] The Crown submits that D.M.’s purported utterances ought not to be admitted on grounds that include the following:
a) There is conflicting evidence about what exactly what said and there is no reliable record of the utterances; b) The utterances were not spontaneous. They occurred many months after the last alleged incident of sexual abuse. D.M. had months to consider what he might say if confronted; and, c) There is no record that will permit the jury to actually see D.M.’s demeanour while uttering his purported denials.
Discussion
[31] I will say, preliminarily, that I have no difficulty with the fact that there may be disparate accounts of what D.M.’s utterances were. It is for the jury to determine, if they can, what was said. While accounts seem to vary about the specific words used, all witnesses tend to agree that whatever D.M. said was in the nature of a denial of the allegations against him.
[32] Moreover, the fact that the jury is unable to see a visual record of D.M.’s reactions is neither here nor there as far as I am concerned. Questions as to what exactly was said and D.M.’s physical appearance when responding to the allegations against him are matters that go to the weight to be assigned to the evidence by the jury.
[33] The Edgar exception places significant emphasis on the spontaneity of the statements of the accused. They must be made before the accused has had an opportunity to “think things out”: R. v. Badhwar, as above, at para. 20.
[34] In this case, DM was called, out of the blue, by S.C. and angrily confronted. He had an immediate reaction, which was in the form of a denial. In my view, the reaction was a spontaneous one, upon first being confronted with allegations of sexual abuse.
[35] Having said that, there was, undoubtedly, a period of months between the last alleged incident of sexual abuse and the confrontation. If DM in fact had committed the alleged offences, then he would have had months to consider what response he might give if the alleged offences ever came to light.
[36] This is a situation where, in my view, DM should be permitted to adduce his prior, out-of-court statement made in response to S.C.’s confrontation. The jury should be instructed about how to assess its weight, in light of all of the evidence going to the issue of spontaneity. I reach this conclusion based on the Edgar line of reasoning, but also for the reasons that follow.
[37] In addition to being satisfied that D.M.’s purported utterances are admissible under the Edgar exception, I am also satisfied that they are admissible to complete the narrative initiated by the Crown and to rebut any suggestion that D.M. first denied the allegations of abuse in his testimony at trial.
[38] I will elaborate.
[39] The fact that S.C. called D.M. to confront him about W.C.’s allegations immediately after they were disclosed is not evidence that relates to any of the essential elements of the offences. In other words, it is not evidence relevant to any live issue in this case. The Crown tendered it as “narrative”. Narrative is kind of a catch-all word for otherwise inadmissible evidence that is adduced for the purpose of stitching together a coherent story for the trier of fact.
[40] As narrative, I can understand the Crown tendering evidence of how S.C. reacted when W.C. disclosed the allegations in this case. Ultimately his reaction led to a reporting of the allegations to the police, which in turn explains how the case came before the court.
[41] At the same time, I do not consider it to have been necessary, as narrative, for S.C. to go into the details of what he said to D.M. The fact that he testified that he asked D.M., “what the hell did you do to my son?” is problematic on at least two levels.
[42] First, the jury will undoubtedly wonder what D.M. said in response. Indeed, one would expect that an innocent person would ask what the heck S.C. was even talking about. The fact that no evidence has been adduced as to D.M.’s response leaves a deafening silence that can only be prejudicial to D.M.
[43] Second, the presumption of innocence and the right to silence are fundamental tenets of our system of criminal justice. D.M. is not under any obligation to say anything when confronted with allegations of criminality. But the fact that the Crown tendered, twice, S.C.’s incriminating accusation, “what the hell did you do to my son?” tends to put D.M. on the back foot. It subtly, or perhaps not so subtly, tends to shift the onus to D.M. to respond to the accusations. His silence cannot be used against him and theoretically the jury could be instructed as such. But on a human level, I cannot help but wonder how the jury could not draw a negative inference if they are left with only silence in the face of S.C.’s angry accusations.
[44] The prejudice to D.M. will be compounded, of course, if he testifies, but fails, or is unable, to mention that he denied the allegations against him from the get-go.
[45] In my view, as a matter of trial fairness to D.M., he must be permitted to complete the narrative that was initiated by the Crown. He must, in light of the evidence of S.C., be permitted to confirm that he has consistently denied the accusations against him from the time they were first raised.
Conclusion
[46] For the foregoing reasons, I conclude that D.M. shall be permitted to testify about his reaction when initially confronted by S.C. with the allegations in this case.
[47] The jury will be instructed that the statements are not to be considered for the truth of their contents, but rather as evidence of the reaction of D.M. which goes to the credibility of his trial testimony and as circumstantial evidence that may have a bearing on culpability. They will also be instructed about how to assess the weight to be given to the statements.
Boswell J.