COURT FILE NO.: CR-22-0071 DATE: 2023 01 05 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Kerlan McLean

BEFORE: J.M. Woollcombe J.

COUNSEL: Sean Doherty, Counsel, for the Crown Marianne Salih, Counsel, for Mr. McLean

HEARD: November 7, 2022

Endorsement

Overview and Positions of the Parties

[1] The respondent, Kerlan McLean, is charged with one count of sexual assault alleged to have occurred on March 9, 2019. His trial, with a jury, is set to commence on February 13, 2023.

[2] The Crown brings a pre-trial motion seeking a ruling respecting the admissibility of WhatsApp messages between the complainant and the respondent in April 2019. Related, is the Crown’s application to have this evidence admitted even though it contains what could be viewed as “other sexual activity” and engages s. 276 of the Criminal Code. The basis for the s. 276 application is that there is an implication on the messages that the complainant had sexual activity with someone other than the respondent.

[3] It is the Crown’s position that in the WhatsApp communications, the complainant made an allegation against the respondent that he had engaged in sexual activity without her consent. She said that she wanted him to have a paternity test to determine whether he was the father of the unborn child she was carrying, in which case she would terminate the pregnancy. She also said that if he did not comply and she later determined he was the father, she would put the child up for adoption and report him to the police. The respondent replied that he would have the prenatal test done, but made no reference to the allegation he had committed sexual assault.

[4] It is the Crown’s position that in these circumstances, it would have been reasonable for the respondent to respond to, and deny the complainant’s allegation of non-consensual sexual activity. The Crown says that his silence permits an inference of assent and that the conversation should be put before the jury for them to consider on this basis.

[5] The defence position is that the Crown has failed to meet the test for the communications to be admitted as a statement that the accused accepted through his silence. Accordingly, the Crown’s application should be dismissed. The defence seeks an order that two passages of the WhatsApp communication – one in which the complainant referred to the sexual assault and a second in which the respondent says he does not know why he should pay when he did not cause the situation, should be edited out of any messages adduced by the Crown.

The Relevant Facts

[6] Some brief context is needed to assess the application.

[7] The respondent and complainant are both paralegals in Peel. They were friends for a number of years prior to the sexual assault allegation. On March 9, 2019, after a drink at a bar, they were both at the respondent’s home. It is agreed that they engaged in consensual cunnilingus.

[8] The complainant says that after this, the respondent penetrated her vaginally with his penis without her consent. In April 2019, she learned that she was pregnant. She believed someone other than the respondent was the father until she spoke with her doctor about the date of conception, which caused her to think that the respondent might be the father as a result of their sexual intercourse on March 9th.

[9] A pre-natal test conducted revealed that the respondent was the father. She terminated the pregnancy.

[10] On August 15, 2019, the complainant provided a videotaped statement to police, which led to the respondent being charged.

[11] The messages at issue occurred on WhatsApp between 8:10 a.m. and 2:05 p.m. on April 29, 2019. At this time, the complainant knew she was pregnant. I have excerpted them below, and bolded the passages that the defence seeks to exclude:

2019-04-26, 6:14 p.m. - Kerlan: Looks like you were at my place March 9

2019-04-28, 8:10 a.m. – K.M.: Listen I'm not going to go back and forth with you on this and I'm only going to say this once. If you want to get a blood test done before I get to 14 weeks that way if it's your baby I will just have an abortion. If not, and I carry this baby full term and it turns out to be yours I will give the baby up for adoption and I will file a complaint with the police. You may think that your actions are justified because maybe you thought my body language said I wanted to have sex, but the fact of the matter is I said no to you multiple times and I had to even use my hand so you wouldn't put your dick in me. I am allowed to want to fool around and not have sex. You are not allowed to stick your dick in someone when they said no just because you may feel they want it or because they wanted to fool around. No means no period and you of all people should know that.

2019-04-28, 9:11 a.m. - Kerlan: Yeah. Let’s do that I don’t know how this works

2019-04-28, 9:11 a.m. - Kerlan: I’m at church

2019-04-28, 11:06 a.m. – K.M.: Well it's like $1400 and it has to be done and the results back within 4 weeks so it realistically needs to be done this week and I'm not paying for it

2019-04-28, 1:29 p.m. - Kerlan: Fuck I’m supposed to pull that out of my ass?

2019-04-28, 2:05 p.m. – K.M.: You can do whatever you want to do but I'm letting you know what I'm going to do. And I don't know why you would think I would be the one to pay for it as I was not the one who caused this situation to begin with

The Applicable Legal Principles

[12] As the Court of Appeal recently explained in R. v. Gordon, 2022 ONCA 799 at para. 49:

49 An inference of adoption may be available to be drawn based on a person's words, actions, conduct, or demeanor in response to a statement made by another person and heard by the person whose response is being considered. Silence in the face of statements made by others, or an equivocal or evasive denial, may also constitute an adoptive admission where the circumstances give rise to a reasonable expectation of reply: R. v. Beauchamp, 2015 ONCA 260, 326 C.C.C. (3d) 280, at para. 247; R. v. Robinson, 2014 ONCA 63, 118 O.R. (3d) 581, at paras. 48–58.

[13] The trial judge, or in this case application judge, acts as the gatekeeper. In accordance with the direction in R. v. Warner, (1994), 94 C.C.C. (3d) 540 (Ont.C.A.), there must be a preliminary determination that some evidence of adoption exists before the issue may be left with the jury. The question is whether the Crown has established that there is sufficient evidence from which a jury might reasonably find that the conduct amounted to an acknowledgement of responsibility. Put another way, as counsel frame it, has the Crown established on a balance of probabilities that the statement was adopted?

[14] If evidence of adoption by silence is admitted, the trial judge must instruct the jury that it is for them to decide whether the accused’s response constituted an adoptive admission, and only to the extent that it was adopted should the jury accept it as true. They must be cautioned to use care before finding that an accused has implicitly adopted a statement by virtue of his failure to respond in a particular way. They should be told that his failure to take issue with what was said may be ambiguous and to consider other explanations. Indeed, they must be told that an accused’s reaction to an accusation against him may have different meanings and that they should consider all relevant circumstances, including any relevant social context where it may impact an accused’s response to an allegation: Gordon at paras. 50-54; R. v. J.F., 2011 ONCA 220 at para. 47.

Analysis

[15] In my view, the Crown has met its onus of establishing that the evidence of the respondent’s silence, in response to the allegation of sexual assault by the complainant, is admissible for the jury to consider. In other words, I conclude that the Crown has established on a balance of probabilities that it was reasonable to expect the respondent to deny the complainant’s accusation in the WhatsApp exchange.

[16] In reaching this view, I think there is a basis upon which the jury could reasonably conclude that the complainant alleged to the respondent that he had sexually assaulted her, that he received and understood that message and that the circumstances were such that he would reasonably have been expected to reply.

[17] I recognize that there are a broad spectrum of ways in which a person may respond to an allegation of sexual assault. The jury will need to be told this clearly.

[18] I accept the defence position that the text exchange at issue is not the only discussion that the complainant and respondent appear to have had about their time together on March 9, 2019. The fact that the respondent started the conversation on April 26, 2019 saying that it looks like she had been at his place on March 9, appears to me to suggest that they had discussed this issue before. Further, the complainant’s statement that she was not being prepared to go back and forth with him suggests that there has been some earlier discussion.

[19] However, it is far from clear whether any earlier discussion between them was about the fact that the complainant was pregnant or about whether or not their sexual intercourse had been consensual. It is not at all apparent whether the complainant had previously alleged that the respondent had sexually assaulted her. She may have. She may not have. I do not think these circumstances mean that the respondent would not be expected to respond to the complainant’s very direct and clear allegations made on the morning of April 28, 2019.

[20] This case is very different from R. v. Henry, [2006] O.J. No 4167, upon which the defence relies. In that case, the summary conviction appeal court rejected the Crown’s argument that the accused’s presence when the complainant made an allegation to the police meant that he had adopted the complainant’s utterance as true. Critically different, however, is that on the trial record that was before Durno J., sitting on the appeal, there was no evidence as to whether the accused had said anything or reacted in any way to the statement made in his presence. In the absence of any evidence, Durno J. declined to conclude that he had been silent. In other words, there was an important evidentiary gap in that case respecting the accused’s reaction.

[21] I see Henry as critically different from this case for two reasons. First, the Crown application before me is at the threshold stage. It is not a determination as to whether there was an adoption of the statement, which Durno J. had to decide on the summary conviction appeal. The threshold here is lower in that the question is not whether the accused did adopt the statement, but whether a jury could reasonably conclude that he did. Second, in this case there is evidence that fills the evidentiary vacuum that had been left by the trial record in Henry. Here, the messages reveal precisely how the accused reacted to the allegation. His contemporaneous written responses are fully recorded. I do not find Henry to assist the respondent in this case.

[22] I also do not accept the defence position that in this case the respondent was somehow prevented from responding to the complainant’s allegation because she effectively shut him down and issued an ultimatum. While Ms. Salih fairly points out that the complainant does not appear in the messages to have been seeking to engage in a discussion about her allegation, I do not think there can be any dispute that she did put her allegation to the respondent directly. Although she said she did not want to go back and forth with him, this appears to me to have been in relation to the blood test. Even if I am wrong about that, and it was in relation to the sexual assault allegation, I cannot conclude that the complaint somehow cut the respondent off or deprived him of an opportunity to reply. This was, after all, a text message discussion. Had the respondent wanted to respond, he was in no way deprived of that chance. This was not a conversation in which the complainant had the capacity to actually cut him off. He had the choice about if and when he would text the complainant back and, if he did so, what he would and would not say and respond to.

[23] Similarly, I am not persuaded by the defence position that the threshold for admissibility has not been met because the accused was unavailable to respond because he was “preoccupied”. I appreciate that if the accused was at church, which he indicated at 9:11 a.m. he was, that might have made responding difficult for a variety of reasons: he might not have thought it appropriate to use his phone during a religious ceremony, to send personal text messages, when other people were likely near to him.

[24] The difficulty with the defence position that the respondent was “unavailable to respond”, however, is that he did choose to respond. He responded to the 8:10 a.m. message at 9:11 a.m. and responded only to the blood test issue. At 9:11 a.m. he responded that he was at church. At 1:29 p.m. he responded again, this time about the money for the pregnancy test. It does not seem to me to have been the case that he was unavailable, because of church, to respond when the record looks the way it does.

[25] In summary, I am satisfied that the Crown has met its onus of establishing the admissibility of the WhatsApp messages as an adoptive statement by the respondent.

[26] It is the respondent’s position that if I admit this evidence for the jury’s consideration, that the respondent ought to be permitted to adduce any evidence at trial that the respondent did, at an earlier point and in response to an allegation of sexual assault, dispute the allegation against him made by the complainant.

[27] I understood the Crown to agree that if the WhatsApp messages are before the jury as adoptive statements for their consideration, it is only fair that the respondent be permitted to both ask the complainant about any earlier allegation of sexual assault made by her to the respondent, and about his response. Similarly, should he testify, the respondent should permitted to give evidence about any earlier denial of the allegations to the complainant.

[28] The usual rule is that an accused may not adduce his prior inconsistent statement denying the allegations. However, in this case, the jury will hear about the allegation of the complainant in the WhatsApp messages and will be invited to consider whether it is an adoptive admission by the respondent. Doing so fairly means that they should be able to consider any evidence of an earlier allegation of sexual assault made by the complainant to the respondent and any evidence of his response. Accordingly, the defence will be permitted to adduce this evidence.

[29] I recognize the potential for prejudice to the respondent by admitting the messages. There is potential for prejudice if the jury is not correctly instructed as to how they may consider the question of whether the respondent adopted the allegation against him by not disputing it. There is further potential for prejudice in the jury hearing a summary of the complainant’s allegation a second time in the messages, in a format in which the allegations are not admissible for their truth.

[30] The trial judge will need to canvas with counsel what jury instructions should be given both during the trial, as this evidence is adduced, and in the charge to the jury at the conclusion of the trial. In my view, careful instructions will ensure that the jury understands the permissible and impermissible uses of this evidence.

[31] Finally, I agree with the Crown that s. 276(1) is engaged in this case because the WhatsApp messages suggest, implicitly, that the complainant engaged in sexual activity with someone other than the respondent. This evidence is obviously inadmissible to support either of the twin myths referred to in s. 276(1).

[32] It is the Crown that seeks to adduce this evidence. There is no defence application to adduce this evidence. As a result, s. 276(2) does not apply. When the Crown seeks admission of evidence of the complainant’s prior sexual history, the test is whether the probative value of the evidence to an issue at trial outweighs the danger of unfair prejudice flowing from its admission: R. v. R.V., 2019 SCC 41 at para. 78.

[33] The evidence that the complainant sought the respondent’s participation in paternity testing is critical background to the Crown’s adoptive admission application, which I have granted. There is no way in to understand the nature or context of the messages between them without the jury hearing that the complainant wanted paternity testing. The probative value of the evidence to an issue at trial is, therefore, high.

[34] There is no suggestion here that jury will be invited to engage in twin myth reasoning. Indeed, the jury will need to be specifically instructed that they are foreclosed from any impermissible twin myth reasoning. This instruction will, in my view, cure any potential prejudice to the complainant or administration of justice caused by admitting the evidence. There is, in my opinion, no prejudice to the accused from the admission of this evidence as proposed by the Crown.

[35] Having considered s. 276, as well as the test for the admission of the WhatsApp messages as adoptive admissions, I have concluded that the Crown may adduce the messages through the complainant at trial.

Woollcombe J. Date: January 5, 2023