COURT FILE NO.: SCA(P) 1662/19 DATE: 20200615 ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – M. M. Appellant

Counsel: P. Renwick, for the Crown Anne Marie Morphew, for the Appellant Keeley Holmes, for the Crown Respondent Nate Jackson, for the Appellant

HEARD: June 5, 2020

REASONS FOR JUDGMENT

[On Appeal from the Reasons for Judgment of Mr. Justice Paul Currie dated March 29, 2019]

An order has been made pursuant to s. 486.4() of the Criminal Code directing that any information that could identify the complainant shall not be published in any document or transmitted in any way.

J.M. Woollcombe J.

A. Introduction

[1] The appellant, M. M., was charged with sexual assault and sexual interference on his 14 year old niece, S. The allegation made was that while they were alone in the appellant’s kitchen, he pressed his crotch against the complainant, put his hand on her crotch, over her clothes, and moved his hand onto her bottom. She said that the incident sent her into shock and she did not know what to do.

[2] The appellant was tried in the Ontario Court of Justice. The complainant was the Crown’s only witness at trial. During her examination in chief, the Crown sought to adduce a number of text messages sent by her to a friend on the day of the alleged offences. Following a voir dire, the trial judge ruled that only those texts sent by her between 3:43 p.m. and 3:45 p.m., said by the complainant to be immediately after the touching, were admissible. He determined that they were admissible as res gestae statements of the complainant’s state of mind.

[3] On March 29, 2019, after reserving his decision on the charges, the trial judge delivered oral reasons for judgement in which he found the appellant guilty.

[4] The appellant submits that the trial judge erred in admitting the text messages and that he improperly used them in his reasons for judgment. He asks that his convictions be set aside and a new trial ordered.

[5] The Crown’s position is that the trial judge made no error in admitting the text messages and that his reasons for judgment reveal no error in his use of the text messages.

B. Summary of the Relevant Evidence

i) The trial

[6] The complainant, S., was 15 at the time of the trial. In accordance with s. 715.1 of the Criminal Code, her videotaped statement to police was played at trial and adopted by her as her evidence.

[7] S. was 14 years old at the time of the allegations. According to her, she had a close relationship with her cousin, the appellant’s daughter. On the weekend of February 24-25, 2018, she spent the Saturday night at her cousin’s home. At one point on the Sunday, she was alone with the appellant and he handed her a $20 bill. She felt uneasy taking it, but he insisted and told her she should come back every weekend. He also told her that she should not tell anyone that he gave her the money. This made her feel uncomfortable.

[8] About twenty to thirty minutes later, S. was in the kitchen by the garbage can. She said that the appellant came up and pressed himself into her and repeated that she should not tell anyone about the $20. He pressed his crotch into her, put his hand between her legs and moved it to her bottom. She said that she was shocked by this.

[9] S. said that about half an hour later, her mum came to pick her up and took her home.

[10] During her examination in chief, the Crown asked S. about text messages she had sent that day to her friend Dylan.

[11] The complainant said that she initially texted Dylan between 3:10 p.m. and 3:20 p.m., right after the appellant gave her the $20.

[12] The Crown then asked S. whether she had disclosed to Dylan that she had been touched by her uncle. Defence counsel objected to the admissibility of text messages about the incident, submitting that such texts were prior consistent statements.

[13] There are three sets of text messages. The first set, sent between 3:10 p.m. and shortly after 3:24 p.m., are those sent after the $20 bill was given to S. and include a back and forth between her and Dylan. The second set, sent between 3:43 and 3:45 p.m., consist of the following from S. to Dylan:

3:43: Help me 3:43 Dylan please 3:43 Help me 3:43 Please 3:44 Dylan 3:45 Fuck I’m about to cry

[14] The third set of text messages are between S. and Dylan after 6:09 p.m. that evening.

[15] Counsel each made preliminary submissions about the admissibility of the text messages.

[16] The Crown’s position was that all of the texts were admissible under the res gestae exception to hearsay. Her position was that the text messages sent by S. were admissible for a number of reasons: to show S.’s state of mind, to show the spontaneity of her allegation, to show her lack of animus towards the appellant, and as the narrative showing how the allegations came to be reported. The Crown also submitted that the texts would refute an allegation of recent fabrication, which she anticipated would be advanced.

[17] The defence position was that the texts sent after 6:00 p.m. were more than three hours after the alleged events and could not be res gestae. In respect of the texts immediately following the receipt of the $20, defence counsel submitted that there was no evidence that these were sent while the complainant felt under pressure and full of anxiety, a requirement of res gestae. However, he conceded, “it’s the texts that follow where she appears to be anxious and perhaps, as my friend indicated, feeling the extent of the circumstances”.

[18] The trial judge decided to hear further evidence from the complainant on a formal voir dire before determining the admissibility of the text messages.

ii) The Voir Dire

[19] On the voir dire, S. testified about her mindset at the time she sent the texts. About the first set, after receiving the money, she said she was confused. She said that the touching was twenty to thirty minutes later. When she sent the texts beginning at 3:43 p.m., after alleged allegations, she said that she was in shock, scared and confused and did not know what to do. The third set of texts were after her mum picked her up and took her home. In those messages, she described what had happened to her. She said that as she sent those messages, she was upset and frustrated and did not know what to do or whether she should tell others about what had happened.

[20] The trial judge asked counsel to make submissions respecting the admissibility of each of the three sets of texts.

[21] The Crown position was that the first set of texts were relevant to S.’s state of mind and to the narrative. The Crown position as that the second set went to the complainant’s state of mind and demeanour at a time when she was under stress and pressure from the event. The Crown position was that the third set of messages were relevant to S.’s lack of motive or ability to fabricate the allegations. Generally, the Crown relied on cases setting out the parameters of the res gestae exception to the rule against the admission of hearsay evidence.

[22] The trial judge called on the defence for submissions only respecting the 3:43 p.m.-3:45 p.m. six text messages.

[23] Counsel acknowledged that these texts were “the most problematic area in terms of whether or not it falls within the res gestae exception”. Counsel emphasized that the law requires such statements to be spontaneous and as a result of stress or pressure such that the possibility of concoction or deception can be safely discounted. It was counsel’s position that the Crown had not established when, in relation to the touching in the kitchen, the texts were sent, and that the court could not assess whether there was a danger of fabrication.

iii) The Voir Dire ruling

[24] The trial judge gave oral reasons. He declined to admit the first or third set of texts.

[25] In relation to the texts between 3:43 p.m. and 3:45 p.m., the trial judge acknowledged that this type of evidence “has been referred to as prior consistent statements, res gestae statements, and evidence admissible under a principled approach”. He properly recognised that the texts could not be admitted if they were merely a restatement of the complainant’s trial evidence. However, he held that the texts between 3:43 p.m. and 3:45 p.m. “would be evidence which goes to the complainant’s state of mind”. He reasoned that they were sent immediately after the alleged touching incident that she described in her evidence, and at a time when she said she was in shock, upset and confused. He continued, holding that “these statements would properly constitute res gestae statements, that is they were made contemporaneous with the event and the maker of the statement was suffering from emotional shock or upset, which sufficiently negates the possibility of concoction”.

iv) The balance of the trial

[26] The trial continued with cross-examination of the complainant. She was cross-examined on inconsistencies in her evidence, on the fact that she had not told the police that she and her cousin had consumed alcohol the night before the allegations, on previous lies she had told and about her anger issues.

[27] In her submissions at the conclusion of the trial, the Crown addressed the significance of the text messages as follows:

Regarding the text messages, Your Honour, they show, in my respectful submission, that she’s in a desperate state of shock and in need of help, which is exactly how she described herself feeling in court. The messages were so spontaneous, and if you find as a fact, they occurred immediately following the alleged touching, so there would not have been any time to concoct. In my respectful submission, Your Honour, there’s no cause for concern on the record that S. is, in fact, fabricating. What you have if you accept that she made the utterance in the text messages immediately after something happened, whether or not that that something is a sexual assault or not, in my respectful submission and on my submissions on the voir dire, when I went through the law with Your Honour, they can be used to support her central allegation and to assess her credibility because what we have is such a spontaneous statement, statement, help me Dylan, help me please, help me, this is clearly a person crying for help. It’s just she wasn’t able to actually state those words.

[28] Defence counsel’s submissions focused on what he called “the problem areas” and “the fatal areas” of S.’s evidence, each of which he elaborated on. In short, the defence position as that S. was not a credible or reliable witness. Counsel submitted that S. was comfortable lying and had lied. His only reference to the text messages was that “the texts, as I’m gonna suggest, are of no moment because we have an individual with a prior history of lying, manipulating and attention-seeking”.

C. Applicable Legal Principles

[29] Prior consistent statements are presumptively inadmissible. They are a form of hearsay. Moreover, because they are a repetition of what the witness said in court, they lack probative value. There is a danger that a trier of fact may mis-use the repetition of a prior consistent statement as a “badge of testimonial trustworthiness”: R. v. D.K., 2020 ONCA 79 at paras. 34-35; R. v. Dinardo, 2008 SCC 24 at paras. 36-40; R. v. Stirling, 2008 SCC 10 at para. 5-7; R. v. Khan, 2017 ONCA 114 at para. 41; leave to appeal refused [2017] S.C.C.A. 139.

[30] There are, of course, exceptions to this general rule. When prior consistent statements are admissible, it is usually for a limited purpose. For instance, prior consistent statements may be admissible to rebut an allegation of recent fabrication.

[31] In R. v. Khan, Hourigan J.A. discussed other possible routes for the admissibility of prior consistent statements, including the hearsay exception of res gestae or spontaneous utterance. As he explained in Khan at para. 15, res gestae statements are admitted as an exception to the hearsay rule on the basis that the stress or pressure under which the statement was made can be said to safely discount the possibility of concoction. The statement must be reasonably contemporaneous with the alleged occurrence. When admitted under this exception, the statement is admissible for its truth: R. v. Sylvain, 2014 ABCA at paras. 30-33, R. v. Khan, 1988, 42 C.C.C. (3d) 197 (Ont.C.A.) at para. 21; affirmed, [1990] 2 S.C.R. 531.

[32] Hourigan J.A. explained in Khan that an “excited utterance”, may also be admissible because it is able to satisfy the principled approach to the hearsay rule in that it is necessary and reliable.

[33] In his concurring reasons in Khan, Doherty J.A. suggested at paras. 58-62 that whenever a prior consistent statement is tendered, the focus of the admissibility inquiry should be on relevance, materiality and probative value, rather than on technicalities of established exceptions. Such an approach requires the trial judge to first assess the purpose for which the statement is tendered. If the statement is offered for its truth, the party seeking to tender it must establish that it is admissible under hearsay principles. If it is not offered for its truth, its purpose must have relevance in the trial. So, for example, if the statement is relevant to the complainant’s credibility, the Crown must explain how or why it is relevant.

[34] There is a well-established body of jurisprudence that evidence of post-offence demeanour or emotional state of a sexual assault complainant may be used as circumstantial evidence to corroborate the complainant’s version of events: R. v. J.A.A., 2011 SCC 17, 2011 S.C.J. 17 at paras. 40-41; R. v. Mugabo, 2017 ONCA 323 at para. 25; R. v. J.A., 2010 ONCA 491; reversed on other grounds 2011 SCC 17; R. v. Varcoe, 2007 ONCA 194 at para. 33.

D. Analysis

[35] The appellant’s position is that the trial judge fell into error in his use of the texts. He says that having admitted the texts for the complainant’s state of mind, the trial judge did not use them for that purpose and, instead, impermissibly used them to confirm the truthfulness of her allegations. Further, he says that the texts should not have been admitted at all.

[36] I will address, firstly, the admissibility of the text messages and, second, the use made of them by the trial judge.

i) Admissibility of the text messages

[37] The trial judge recognized that the texts could not be admitted to merely bolster the truthfulness of the complainant’s trial evidence. However, he held that those texts sent between 3:43 p.m. - 3:45 p.m. were evidence that went to the complainant’s state of mind during that time period, immediately after the touching incident she described. He went on to conclude that the texts were res gestae statements that were made contemporaneously with the event, and that the complainant was suffering from emotional shock or upset at the time, which sufficiently negated the possibility of concoction.

[38] In my view, the trial judge made no error in admitting the texts as relevant to the complainant’s state of mind in the time immediately after she alleged she had been sexually assaulted. Evidence of a complainant’s demeanour immediately after an alleged sexual assault is admissible evidence because it is probative and relevant. The complainant’s demeanour did not necessarily mean that she had been sexually assaulted. But it was some circumstantial evidence that she sent messages in which she appeared to be seeking help and to be upset.

[39] The appellant’s real admissibility complaint is, as I understand it, about the trial judge’s decision to admit the texts as res gestae statements for their truth. The appellant’s position, relying on the analysis of Nakatsuru J. in R. v. N.W., 2018 ONSC 774, is that even if the texts could properly be characterized as res gestae statements, they were admissible for their truth only if the Crown also established that they were necessary and reliable. It is his position that necessity was not met here because of S.’s availability to testify and because the texts were in no way superior to her sworn testimony.

[40] It is noteworthy that the position now advanced by the appellant was never put before the trial judge. Indeed, in counsel’s trial submissions about the admissibility of the texts between 3:43 p.m. and 3:45 p.m., he raised only whether these texts fell within the res gestae exception. I recognize that counsel’s failure to advance an argument at trial does not make his argument on appeal fatal, but it does explain why the trial judge did not approach the issue as appeal counsel now says he ought to have.

[41] But, in any event, it is my view that the appellant’s legal analysis is not consistent with the majority decision in Khan. In Khan, Hourigan J.A. affirmed that a prior consistent statement may be admitted under the res gestae hearsay exception. Admissibility on this basis focuses on the fact that the statement was made under stress or pressure, with the result that the possibility of concoction can be discounted. Nowhere in Khan does the court require an additional assessment of the necessity of admitting the statement, as advocated by the appellant on the basis of N.M.

[42] The statements in the texts sent by S. at 3:43 p.m. to 3:45 p.m. appear to be requests for help and an indication by the complainant that she is upset. They were sent, on her evidence, immediately after the alleged allegations in the kitchen, and at a time that she was stressed and upset. It was open to the trial judge to conclude that timing and situation negated the possibility that the complainant was concocting the texts. Admitted for their truth, the texts provided some circumstantial evidence as to S.’s state of mind at that time that she sent them. The danger that they would be relied upon as a prior statement bolstering the truth of the allegations was significantly attenuated because the texts did not include any reference to the allegations themselves. In all these circumstances, I see no error in the trial judge admitting them as res gestae statements.

ii) The use made of the texts by the trial judge

[43] The trial judge’s reasons for judgment reveal, in my view, that he placed minimal weight on the text messages. His few references to the text messages need to be assessed in the context of his reasons as a whole and his ruling admitting the texts as evidence of the complainant’s state of mind.

[44] In his oral reasons for judgment, the trial judge summarized the complainant’s allegations as described in her videotaped statement. In that summary, he noted that S. had said that her mother picked her up at around 4:10 p.m. The trial judge commented that “the timing is significant” because of the text messages which had been admitted as spontaneous statements. He observed that S. had said that the incident occurred about half an hour before her mother arrived. The text messages were sent 27 minutes before her mother arrived. He concluded that “these messages were sent immediately after incident” she described.

[45] After completing his review of the videotaped police statement, the trial judge turned to the evidence adduced during S.’s cross-examination, none of which related to the texts. He then summarized the submissions of the defence, noting that counsel’s position was that the text messages were of no significance because of the complainant’s capacity to lie, and the fact that it would not have been difficult for her to have invented the messages to get attention from Dylan.

[46] Finally, the trial judge set out his conclusions about the complainant’s credibility, the central issue before him. He found her believable and credible. He found the manner in which she described the incidents “seemed to me to be exactly the manner in which a young person of her age” might describe them. He found her reaction to the events as precisely the way a young person her age would react. He also found that her hesitation to disclose what had happened, and her worries about the impact that disclosure would have on her family, were reasonable.

[47] The trial judge specifically addressed the arguments respecting S.’s credibility advanced by the defence. He found her failure to tell the police she and her cousin had been drinking was hardly surprising and did not detract from her credibility. He found her failure to mention to police where she put the $20 was because she was not asked. Similarly, he concluded that neither the fact that she had lied to her friends and her mother in the past, nor the fact that she had experimented with cutting herself on one or two occasions, undermined her overall credibility. Ultimately, he was satisfied that the Crown had proven the offences beyond a reasonable doubt.

[48] As this summary of the reasons for judgment reveals, in setting out his credibility findings respecting the complainant, the trial judge made no mention whatsoever of the text messages. This strongly suggests that they were of little or no importance to him in those credibility findings.

[49] Significantly, the only specific reference to the text messages made by the trial judge was in relation to the time at which they were sent and how that fit into the chronology. I see no error in this reference.

[50] The trial judge’s ruling on the voir dire demonstrated his appreciation that the texts could not be used to bolster the complainant’s allegations by repeating her in-court evidence, and that they were relevant to her emotional state. Counsel submits that error can be inferred from the fact that in his reasons for judgment, the trial judge never said expressly that said that he was only using the texts for state of mind or demeanour or emotional state, as he should have. I disagree. While I agree that the trial judge did not repeat in his reasons for judgment the purpose for which the texts had been admitted, I see no reason why he was required to do so.

[51] Counsel for the appellant points to no specific passage in the reasons where the trial judge is said to have used the text messages in an impermissible manner. This distinguishes this case from many of those upon which the appellant relies. In most of those cases, there was a clear reason to believe that the trial judge had misused a prior consistent statement and found the complainant more credible because she repeated in court what she had said before. See, for example, R. v. Langan, 2019 BCCA 467 at para. 47; R. v. G.J.S., 2020 ONSC 7251 at paras. 46-51; R. v. Zou, 2017 ONCA 90; R. v. Mackenzie, 2015 ONCA 93 at paras. 10-11; R. v. A.V., 2020 ONCA 58 at paras. 19-20; R. v. D.K., 2020 ONCA at para. 46. By contrast, in this case, there is nothing in the trial judge’s reasons to suggest that he improperly used the texts to confirm the evidence given by the complainant at trial.

[52] Counsel further submits that the trial judge’s reasons suffer from ambiguity about the purposes for which he used the texts, an error that is said to warrant a new trial being ordered. I appreciate that ambiguity about what the trial judge’s reasoning was could lead to reversible error: R. v. D.K. at para. 43. Again, reading the reasons for judgment, in light of the ruling on the voir dire, I do not agree that there is ambiguity about whether the trial judge mis-used the texts. There is nothing in the reasons to suggest that he strayed into using the texts for a purpose other than the complainant’s demeanour at the time she sent them.

[53] The appellant suggests that the trial judge was “vague” about what he meant when he referred to the complainant’s “reaction” to the incident being how one would expect a person in her circumstances to react. I acknowledge that it is not entirely clear what he was referring to. S. testified that her reaction was one of being shocked and scared and confused. This could be what the trial judge was referring to. She also testified that she texted messages that she was upset and needed help and was about to cry. This could be what the trial judge was referring to. Or, in view of the rest of the paragraph, the trial judge could have been referring to the complainant’s reluctance to immediately disclose what had happened to her mother.

[54] In my view, none of these possibilities evinces error on the trial judge’s part. The trial judge said nothing to suggest he was using the texts to improperly confirm the complainant’s evidence or to conclude that her evidence was more credible because of the text messages. I cannot read into a reference to her “reaction” that he proceeded along an impermissible line of reasoning.

[55] The appellant also submits that in the one passage in his reasons in which the trial judge did refer to the text messages, he used them for an improper purpose. I see nothing impermissible about the trial judge’s reference to the timing of the text messages. The trial judge was simply noting that the complainant’s text messages were consistent with her evidence in terms of chronology. Her evidence was that the incident occurred, she became upset, she sent texts to Dylan between 3:43 p.m. -3:45 p.m., and her mother came about half an hour after the incident, which was 4:10 p.m. The text messages sent show that her state of mind at 3:43 p.m. - 3:45 p.m. was upset and that that she was crying for help. All the trial judge was referring to was the internal consistency between her evidence and the text messages: R. v. Nwoko, 2019 ONCA 2430 at paras. 36-37.

[56] As the Crown points out, having admitted the texts under the res gestae exception for their truth, it was open to the trial judge to rely upon her distraught emotional state at the time she sent the texts as evidence that supported her allegations. But, in my view, while this reasoning would have been available to the trial judge, his reasons reflect that he did not engage in this reasoning process.

[57] The appellant submits that it was improper for the trial judge to rely on the texts as post-offence demeanour evidence because they lacked the quality of “independence”. Unlike when a third party who observes a complainant’s demeanour testifies about it, this was a case, as counsel fairly points out, in which the complainant herself created the texts. The appellant says that her own hearsay evidence about her demeanour could not be used to confirm her in court evidence respecting the allegations. As a result, counsel submits that it was not open to the trial judge to rely on her demeanour evidence at all. This position was not advanced at trial.

[58] In my view, the appellant’s position cannot succeed in this case because, as I have said, the trial judge’s reasons show that he did not rely on her demeanour in the text messages to confirm her version of events. Instead, the trial judge thoroughly analyzed the complainant’s allegations, her evidence, and the many submissions made as to why she was not credible. He made credibility findings that were open to him. He did not inject any views about the texts and what they revealed into that analysis. Accordingly, I cannot say that he used the text messages improperly.

E. Conclusion

[59] For the reasons I have set out, the appeal is dismissed.

Woollcombe J.

DATE: June 15, 2020