CITATION

R. v. G.B, 2020 ONSC 3704

COURT FILE NO.: CR-20-30000066

DATE: 20200728

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

G.B.

Defendant

Samuel Walker, for the Crown

Peter Brauti, for the Defendant

HEARD: January 20, 23, 24, 27-29, 2020 and June 9, 2020

SPIES J.

Ruling on Crown Application to lead hearsay statements and other sexual touching by the Complainant

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way.

A. Overview

1The defendant, G.B., was charged with four counts related to the alleged sexual abuse of his niece, M.T., between 1980 and 1984, when she was between eight and 11 years old. In particular, he was charged with one count of gross indecency, contrary to s. 157, one count of indecent assault contrary to s. 149, one count of sexual assault contrary to s. 246.1 and one count of having sexual intercourse with M.T. when she was under the age of 14, contrary to s. 146 of the Criminal Code. His trial proceeded before me without a jury. The hearing of the evidence was completed by the end of January 2020, but the closing submissions were delayed due to the closure of the courts as a result of the COVID-19 pandemic. They were heard by video conference on June 9, 2020, with the consent of the parties. On July 16, 2020, I released my decision to the parties acquitting G.B. of all charges; see R. v. G.B., 2020 ONSC 3705 (“Reasons for Judgment”).

2At the opening of the trial, the Crown sought a ruling that certain hearsay statements made by the complainant to her brother and evidence of other sexual activity between the complainant and her brother be admissible in this trial. With the consent of G.B., I heard the evidence during the course of a blended voir dire and trial. In addition, I ruled that this evidence should be heard in camera to minimize the invasion of the complainant’s privacy and given that it was of other sexual activity of the complainant and her brother that could be relevant. It was agreed that I would rule on this application at the close of the Crown’s case and before G.B. was put to his election as to whether or not to call any evidence.

3On January 29, 2020 I advised the parties that I had decided that this evidence was admissible as pure narrative and as narrative as circumstantial evidence. I ruled that this evidence was not admissible as hearsay and that if I found that the statements alleged to have been made by the complainant were in fact made, they were not admitted for their truth. I provided the parties with brief oral reasons and advised that I would provide written reasons for that decision. These are those reasons.

The Evidence

4A summary of the evidence in issue is as follows. More details are set out in my Reasons for Judgment. M.T. alleged that her uncle, G.B., sexually assaulted her in essentially two ways. First, she alleged that he would show her pornographic playing cards when they were alone together in the basement of his home, and that, in particular, he would show her a card that portrayed a woman giving oral sex to a man. M.T. alleged that on two or possibly three occasions, G.B. asked her to do the same to him and that she would lick his penis and he would rub it up against her vagina. She also alleged that he asked her to touch his anus with paper and put her finger in his anus. In addition, M.T. alleged that on one occasion G.B. took her into a basement bedroom in her home and attempted to penetrate her vagina with his penis.

5M.T. has a younger brother, A.T., who is approximately one and one-half years younger than her. Her sister, H.D., is three-and one-half years older. A.T. testified that he remembered three incidents when M.T. touched him in a sexual manner when he was around seven to nine years old, which means that these incidents are alleged to have occurred when M.T. was between roughly eight to 11 years old. The three incidents A.T. recalled are as follows.

First Incident

6A.T. testified that the first incident took place in the basement of the family home in the bedroom with the red carpet when he was probably seven or eight years old. M.T. told him that she wanted to try something that Foaji¹ had shown her. She told A.T. that Foaji had shown her how to rub a piece of paper on the outside of his anus and that Foaji said it felt good. M.T. wanted to try this on A.T. so he could tell her how it felt. A.T. testified that he got down on his knees and bent over and M.T. took some strips of paper and rubbed lightly over the outside of his anus. They were little pieces of scrap paper, or possibly Kleenex that she tore up. While M.T. was doing this, she asked him if it felt good. This lasted maybe a few minutes. What A.T. took from this incident is that M.T. and G.B. had been engaged in this kind of conduct together.

Second Incident

7A.T. recalled that the next incident was when he was probably eight or nine and they were on a road trip somewhere. The children were in the back seat of the car with their parents in the front seat. A.T. was in the middle of the back seat, M.T. was on one side and H.D. was on his other side. It was late at night and there was a blanket over them. M.T. whispered in his ear that Foaji told her that it felt good if she rubbed the top of his penis and that she wanted to try it on him. M.T. took his penis and rubbed the tip of his penis with her fingers for a period of time and asked him how it felt. Again, he concluded that M.T. had been involved with G.B. in a sexual act like that as well.

Third Incident

8The last incident that A.T. remembered was another time in the basement of the family home in the room with the red carpet. M.T. told him that she wanted to show him something and that he was to rub his penis on her vagina while they were lying down. He did this for a few minutes. A.T. testified that he could not recall M.T. specifically mentioning G.B. this time, but he guessed that it was something G.B. had showed her.

Evidence of M.T.

9M.T. testified that the first time she and A.T. talked about this was at the police station in October 2017 when she reported her allegations about G.B. to police. A.T. confirmed this evidence. They both testified that they discussed it when H.D. was giving her statement to police and they were left alone in a room.

10M.T. testified that she did remember being in the back seat of the car with a blanket over her and A.T., but she did not remember touching her brother and saying what he testified that she said. She only remembered one incident when she touched her brother’s bum with tissue while he was on all fours with his pants down. That was her only memory of touching her brother and she did not remember saying anything. M.T. went on to state that this just seemed to be like a “natural extension” because they used the washroom in front of each other. A.T. would chat with her when she was naked in the washroom and vice versa. It did not seem unnatural that she would do that to him when she was in grade four or five. M.T. remembered that she had done this to G.B. and, at the time, she thought it was a part of something natural that she had done before and that there was nothing wrong. In cross-examination, M.T. testified that she had had this memory and when A.T. brought it up at the police station, it was almost like he refreshed her memory.

Evidence of H.D.

11H.D.’s evidence was different in that she testified that at the police station she learned about things that had happened between M.T. and her brother during a discussion that took place before she went to give her statement. She recalled that A.T. asked M.T. if she remembered that she had told him that Foaji had taught her about touching the penis, but A.T. did not reveal that he was abused in any way. H.D. testified, however, that she assumed that M.T. must have touched his penis. According to H.D., M.T. said in response that she had forgotten that memory of sitting in the car with a blanket, but that she remembered that now and that she must have blocked it out. She said that she was so sorry she had forgotten it. H.D. testified that she then went to give her statement.

The Issues

12Argument proceeded on the basis that the statements allegedly made by M.T. to her brother during the sexual touching are hearsay and as prior consistent statements they are presumptively inadmissible. A further complication was that M.T. did not remember some of the alleged conduct and did not remember making any of the statements to her brother. This unusual evidence gave rise to a number of admissibility issues. There was no dispute that as other sexual activity of the complainant to be led by the Crown, the admission of this evidence was subject to a ruling from the court pursuant to common law principles reflected in s. 276(2) of the Criminal Code. In addition, the Crown sought to adduce the hearsay statements of the complainant that accompanied the sexual touching on three bases: 1) as “pure narrative”, 2) as “narrative as circumstantial evidence” and 3) as a principled exception to the hearsay rule for the truth of the statements.

13The position of Mr. Brauti was that the Crown’s application should be dismissed in its entirety. He conceded that the evidence does not engage the twin-myths prohibited by s. 276(1) of the Criminal Code or the common law, but submitted that this evidence alone is not probative of the fact that G.B. is guilty of sexually assaulting M.T. unless the defendant is linked to the abuse suffered by M.T. He submitted that this could not be done unless this court found that the hearsay statements of M.T. were made and admitted the statements for their truth.

14Mr. Brauti conceded that as hearsay, the necessity threshold was satisfied because it was the testimony that was unavailable, not the witness herself. However, he argued vigorously that the statements did not meet the threshold of reliability and, in any event, the prejudicial value of the statements outweighed any probative effect their admission might have. He also submitted that the statements had no weight as narrative in that they did not advance the story of how M.T. decided to disclose the allegations. It was also his position that the statements were not admissible as narrative as circumstantial evidence since under that exception they could not be admitted for their truth, and that was the only way they would have any probative value because accepting the statements as true, they did not assist in determining whether the abuse suffered by M.T. was at the hands of the defendant or someone else. On this basis he submitted that the prejudicial effect of the admission of the statements outweighed their probative value.

15Because of the positions taken by counsel, argument focused on the three bases the Crown relied upon to admit the statements alleged to have been made by M.T. to her brother into evidence, rather than the relevance of the conduct itself.

Analysis

Is the evidence of prior sexual touching admissible?

16In the recent trilogy of cases from the Supreme Court of Canada, R. v. Barton, 2019 SCC 33, 435 D.L.R. (4th) 191, at para. 80, R. v. Goldfinch, 2019 SCC 38, 435 D.L.R. (4th) 1, at para. 142 and R. v. R.V., 2019 SCC 41, 436 D.L.R. (4th) 265, at para. 78, the court held that although s. 276(2) of the Criminal Code does not apply to Crown-led evidence of other sexual activity, the common law principles articulated in R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577 still apply. Given that the reasoning dangers inherent in prior sexual activity evidence are potentially present regardless of which party adduces the evidence, the common law requires that the trial judge perform a gate-keeping function in order to determine that the evidence does not engage ‘twin-myth reasoning’ and that its probative value outweighs any prejudice to the defendant. Given that the procedural requirements of s. 276(2) do not apply to Crown-led evidence, there was no as of right entitlement for the complainant to have counsel appear on the Application as set out in s. 278.94(3).

17The Crown submitted that this evidence is highly probative of the fact that the alleged sexual abuse occurred. According to the complainant’s brother, at the time of the sexual touching M.T. effectively explained that she was mimicking what she had been asked to do to the defendant. Indeed, as described above, the Crown argued that the ways in which M.T. touched her brother are strikingly similar to the unusual particulars of the sexual abuse allegedly perpetrated by the defendant. M.T. was roughly eight to 11 years old at the time and it was submitted that it was highly unlikely that at that young age she would have knowledge of the sexual acts described, or that she would fabricate the allegation to her brother in this manner.

18Mr. Brauti submitted that the alleged sexual touching by M.T. of her brother had no probative value unless the statements were accepted as true and that accordingly, its prejudicial effect should militate towards inadmissibility of the evidence.

19The submissions of counsel focused on whether the evidence of A.T. about prior consistent statements made by M.T. was admissible, and, if so, on what basis, rather than his evidence as to the sexual touching itself. Given that I found that the evidence of those statements was admissible as pure narrative and as narrative as circumstantial evidence, the evidence of the conduct that accompanied those statements was also admissible as it provided part of the context that made the statements, if proven, relevant.

20Given that I found that this evidence was relevant in a manner that did not engage the “twin myths,” I concluded that the potential relevance of this evidence outweighed any potential prejudice and that as a result this evidence was admissible.

Is the evidence of the statements made by M.T. to her brother admissible as narrative?

21Mr. Walker submitted that the statements made by M.T. were the first disclosure, albeit indirect, of the sexual abuse to any person, and that, on this basis, were admissible as pure narrative.

22As the court said in R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, at para. 30, as “pure narrative,” prior consistent statements carry no weight because they are tendered simply to give the background to explain how the complainant came to be before the court. In R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 37, the court stated that a prior consistent statement may be used for the purpose of showing the fact and timing of a complaint, which may then assist the trier of fact in the assessment of truthfulness or credibility.

23The Court of Appeal described the pure narrative exception in R. v. F. (J.E.) [Fair] (1993), 1993 CanLII 3384 (ON CA), 16 O.R. (3d) 1, at p. 13, as background information which allows the decision-maker to understand the “chronological cohesion and eliminate gaps which would divert the mind of the listener from the central issue”. Considering this aspect alone, I agreed with the submission of Mr. Brauti that the statements alleged to have been made by M.T. to her brother did not advance the story from the offence to explain why and when she came to make these allegations, or to fill in a gap in the sequence of events leading to her reporting her allegations to police.

24There is, however, another exception stated in Fair, which persuaded me to admit the evidence of these prior consistent statements as pure narrative. At p. 11, the court states that in addition to advancing the story from offence to prosecution, narrative evidence is an exception to the rule against the prior consistent statement where it “explains why so little was done to terminate the abuse or bring the perpetrator to justice”.

25On that basis I found that this evidence could explain and corroborate why the complainant did not report these allegations at the time the alleged sexual abuse was occurring. When the statements were alleged to have been made, M.T. was not complaining to her brother. Rather, the statements assisted in showing that at the time M.T. made the statements, she believed the conduct she was showing to her brother and engaging in was innocent. The statements corroborate her ignorance and explain in part why she did not report the alleged conduct by G.B. at the time it was occurring.

26In addition, given the Defence position that M.T. made up these allegations in 1989 when she first disclosed to a good friend that she had been sexually molested by an uncle when she was a child, I found this evidence was also admissible to rebut fabrication of her evidence at that time.

Is the evidence admissible as narrative as circumstantial evidence?

27Turning to the question of whether M.T.’s statements were admissible under the exception of narrative as circumstantial evidence, Mr. Walker submitted that the statements were made contemporaneously with the relevant conduct and that they provided the surrounding circumstances and context to evaluate the credibility and reliability of her in-court testimony.

28As the court stated in Khan, at para. 31, sometimes the circumstances surrounding the making of the prior consistent statements are such that they assist in assessing the reliability and credibility of a witness’ in-court testimony, which gives the prior consistent statements admitted as narrative a more substantive use referred to as “narrative as circumstantial evidence”.

29The relevant law was summarized in R. v. S.K., 2019 ONCA 776, 148 O.R. (3d) 1, at paras. 91-93, where Simmons J.A. speaking for the court, referred to and summarized the court’s earlier decision in R. v. C. (M.), 2014 ONCA 611, 325 O.A.C. 1. In C. (M.), at para. 59, Watt J.A. explained that prior consistent statements consist of two elements – a hearsay element, i.e. the contents of the statement, and a declaration element, i.e. the fact that the statement was made. Sometimes the hearsay part comes in and at other times only the declaration part is admitted: C. (M.), at para. 61.

30At para. 60 of C. (M.), Justice Watt cited R. v. T. (W.P.) [Toten] (1993), 14 O.R. (3d) 224 (C.A.), at pp. 255-56, for the proposition that prior consistent statements may be admitted into evidence when they are not being used to support an inference that by virtue of repetition that somehow the complainant’s evidence is more credible. He concluded at para. 60, that:

The exceptions permit introduction of a prior consistent statement where proof of it is relevant without an inference of credibility enhancement because the witness said the same thing previously. [Emphasis added]

31Under this exception, the statement is not evidence that can be used to prove the truth of what was said but it may assist the trier of fact in the assessment of the truthfulness or reliability of the declarant: C.(M.), at paras. 65-66.

32Mr. Brauti argued that in considering this basis for admissibility, I must consider the reliability of the statements that A.T. alleged that his sister made because they are hearsay statements. He made several submissions as to why they are not reliable. I will review those submissions when I get to the final issue, but I was of the view that reliability is not an issue in determining whether or not the statements alleged to have been made by M.T. are admissible as narrative as circumstantial evidence. The reason is that at this stage I was only considering whether the declaration components of the statements should be admitted, i.e. whether the statements were made. That did not engage the rule against hearsay. In my view, if the evidence was admissible on this basis, the question of whether the statements were in fact made was a matter on which A.T. could be cross-examined, and an issue to be determined at the end of all of the evidence.

33In light of the law that I have summarized, I concluded that so long as the prior consistent statements had probative value beyond their mere repetition they were admissible. On that basis, I concluded that if those statements were found to be made, they provided surrounding circumstances and context that could assist in my assessment of the truthfulness and/or reliability of M.T.’s in-court testimony and that accordingly there was other probative value to the statements.

34Mr. Walker argued that the statements were necessary to understand the complainant’s state of mind at the time of the conduct to show that she was mimicking what G.B. had showed her, but in my view, that argument could not be accepted as it assumed that the contents of the statement were true. However, I did accept his other submissions as to the probative value of the declaration component of these statements, including the timing of the statements and the context in which they were made; namely, they were accompanied by the sexual touching initiated by M.T. In particular I found that when these statements were made, M.T. was a young child, that there was little likelihood she would have knowledge of this kind of conduct on her own and that, as already stated, the statements demonstrated that at the time M.T. did not think the behaviour was wrong – she saw it as innocent.

35For these reasons, I admitted A.T.’s evidence of the statements he alleged were made by M.T. when she initiated sexual touching with him, as narrative as circumstantial evidence.

Is the evidence of A.T. as to statements made by M.T. admissible as hearsay evidence?

36Since Mr. Brauti conceded necessity, his submissions focused on why the statements did not meet threshold reliability. I, of course, had to consider whether this evidence was reasonably necessary as that is the first requirement in considering the admissibility of a hearsay statement for its truth. For the reasons that follow, I concluded that the statements were not admissible for the truth of their contents pursuant to the principled exception to the hearsay rule because the admission of the statements for this purpose was not necessary. As a result, I did not need to consider Mr. Brauti’s arguments that the statements did not meet the threshold reliability requirement.

37With respect to the necessity component, the Crown must be able to satisfy the court that evidence of the same or similar value cannot be produced to prove a fact in issue: R v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, at paras. 34-36. Necessity is not to be lightly assumed: see R. v. Rockey, 1996 CanLII 151 (SCC), [1996] 3 S.C.R. 829, at para. 17.

38The Crown argued that the necessity threshold is met where, as here, the complainant has no recollection of making the statements that A.T. testified to, relying on R. v. Chretien, 2014 ONCA 403, 321 O.A.C. 150, at para. 46. In that case, one of the issues on appeal was the trial judge’s ruling that a videotaped statement of a Crown witness be admitted at trial pursuant to the principled exception to the hearsay rule. The focus of the videotaped statement was a conversation the witness told police that he had with the defendant about a fight that resulted in death of the complainant shortly after the fight. The trial judge found that necessity had been established because at trial, the witness had no memory of this conversation that he recounted in his statement to police. At para. 46, Weiler J.A. speaking for the court stated that necessity was not an issue on the appeal because the witness claimed no memory of the relevant conversation when he testified at trial and so the evidence was not otherwise available.

39Mr. Walker relied upon this passage from Chretien for the general proposition that where the evidence is unavailable, necessity is established. In my view, the principal is not that broad. In Chretien, the only source of this evidence from the witness, given his inability to recall what he told police, was his videotaped statement. The court upheld the conclusion of the trial judge that the prior statement was reliable and thus admissible for its truth. I appreciate that this is similar to the case at bar as the only source of evidence as to what M.T. said to her brother came from his evidence. However, in Chretien, the prior statement was clearly admissible as it amounted to admissions made by the defendant to the witness. It was not relevant because it was a prior consistent statement.

40As I stated in my oral reasons, in coming to my decision, I considered the article by Justice David Paciocco, “The Perils and Potential of Prior Consistent Statements: Let’s Get it Right” (2013) 17 Can. Crim. L. Rev. 181, at p. 192, where he considered what he termed: “Prior Consistent Admissible Hearsay”. There he stated that the “necessity” component performs a “best evidence” function, and that even though in-court testimony is generally “better” because it can be more readily evaluated for its truth, there are times when hearsay evidence is expressed under circumstances that yield tremendously helpful criteria for evaluating the reliability or credibility of a factual claim. At page 193, Paciocco J.A. stated that there are, therefore, “cases where legislators and the common law created hearsay exceptions that do not have necessity components, the most important examples of which are the business records exception and the res gestae exceptions”.

41Paciocco J.A. stressed however at p. 194, that there is:

no added value in the fact that the two items of admissible evidence [the prior consistent statement and the evidence of the declarant at trial] 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 …

In sum, where 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.

42In a footnote to this passage, Justice Paciocco states that it is worth bearing this point in mind when considering the “narrative as circumstantial evidence” exception.

43I also considered the law as summarized in Paciocco and Stuesser, The Law of Evidence, 7th ed. (Irvin Law Inc., 2015). At pp. 535-536, the authors stated that: “[w]here a prior consistent statement is found in otherwise admissible hearsay it can be proved”. In addition to the traditional hearsay exceptions such as business records and res gestae, the authors state that this is also true “where a statement meets the requirements of the case-by-case hearsay exception developed in Khan”. However, at p. 133, in section 1.1 headed “Reasonable Necessity,” the authors state that “if a witness testifies, the law generally does not allow for the admission of other prior consistent statements; such repetition violates the rule against oath-helping.”

44If I interpreted these passages correctly, beyond the narrative as circumstantial evidence exception, which I have already considered, a prior statement, even if it meets the principled exception to the hearsay rule, cannot be used for the truth of its contents where the declarant gives the same evidence at trial, as that would offend the rule excluding prior consistent statements. In other words, even if what A.T. testified to could be considered reliable evidence, the prior consistent statements by M.T. could not be used for their truth. In the same way, had M.T. recalled what she told her brother, that evidence could not be used to infer that she was more credible merely because she had said the same thing previously to her brother that she was alleging at trial.

45For these reasons, I concluded that it was not enough to find reasonable necessity on the basis that the evidence was unavailable in that M.T. had no memory of the sexual touching or the statements A.T. testified to. This was not a case where that the evidence was necessary to deal with a change in M.T.’s evidence, or to fill a gap because the evidence of her allegations was somehow incomplete without this evidence. This was not a case where the best evidence was the evidence of A.T. as to what M.T. told him. M.T. was very clear and detailed at trial about what she alleged G.B. did to her. I concluded that this hearsay evidence of prior consistent statements was not reasonably necessary in the sense that it was necessary to achieve a fuller and more complete account of what M.T. alleged. If admitted for its truth, it would offend the rule excluding prior consistent statements.

46For these reasons, I concluded that this evidence did not meet the threshold test of reasonably necessary and that the statements A.T. alleged were made to him by M.T. were not admissible for the truth of their contents.

“Spies J.”

Spies J.

Released: July 28, 2020

CITATION: R. v. G.B, 2020 ONSC 3704

Footnotes

1. 1Foaji is the name that the children used to refer to G.B.