ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-21-0000336
DATE: 20230126
B E T W E E N:
His MAJESTY THE king
- and -
S.R.
Stuart Rothman, for the Crown/applicant
Maurice Mattis, for the accused/respondent
HEARD: November 28 - December 1, 2022
Subject to any further order of a court of competent jurisdiction, an order has been made in this proceeding, pursuant to s. 486.4(1) of the Criminal Code, directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way.
J.M. Barrett J.
Hearsay Ruling
A. Overview
[1] SR was before the court on a three-count indictment, alleging that he sexually assaulted his biological daughter SB on March 1, 2021, and March 3, 2021, in violation of a probation order which required that he keep the peace and be of good behaviour.
[2] A blended voir dire was held to determine the admissibility of text messages SB sent to a friend on March 2 and March 3, 2021. SB testified that the text messages sent on March 3, 2021 were sent immediately before, during, and after she was allegedly sexually assaulted by the accused.
[3] On the voir dire, the Crown filed Exhibit “A” which consists of fourteen pages that can be grouped into the following three categories:
(i) Text messages sent under the timestamp “Yesterday 21:31” – pages 1-2;
(ii) Text messages sent under the timestamp “Today 07:33” – pages 2-9 and 12-14; and,
(iii) Photographs – pages 10-11.
[4] During closing submissions, the Crown agreed that the text messages identified in paragraph 3(i) were not sent contemporaneous with the alleged sexual assault and therefore did not fall within the res gestae hearsay exception. The Crown did not seek to have these admitted for the truth of their contents, only as narrative as circumstantial evidence: R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, at para. 31.
[5] The Crown also submitted that the photographs identified in paragraph 3(iii) are real evidence, not hearsay. As such, any issues concerning what they depict and when they were taken are matters that go to weight, not admissibility.
[6] Accordingly, the only proposed evidence that is sought to be admitted under the res gestae exception to the hearsay rule are the text messages identified in paragraph 3(ii) – namely, SB’s text messages on March 3, 2021. The Crown seeks to have these admitted for the truth of their contents. Alternatively, the Crown seeks their admission as narrative as circumstantial evidence.
[7] In response, the defence argued that SB fabricated the content of these text messages. Consequently, they do not fall within the res gestae exception to the hearsay rule, nor do they meet the test for admissibility under the principled approach.
[8] These are my reasons denying the Crown’s request to admit the text messages into evidence for any purpose.
B. The Text Messages
[9] SB testified that the text messages contained in Exhibit “A” are communications she had with a friend she called “Uncle P”. SB explained that the text messages were sent on March 2 and March 3, 2021. According to SB, the text messages from March 3, 2021 were sent immediately before, during and after the alleged sexual assault. SB testified that because of her text messages, Uncle P called the police and told her this. After the alleged assault, SB ran from the accused’s residence to a Subway restaurant where she passed out. She was taken by ambulance to the hospital. Screenshots of the text messages were taken by the police on March 3, 2021, while SB was at the hospital undergoing a sexual assault examination.
[10] The messages on the left of the screenshots are from Uncle P. SB’s messages appear on the right side of the screen.
[11] SB testified that the timestamp of “17:34” visible on page 1 is the time the screenshots were taken by the police. The timestamp in the body of the conversation on page 1 reads “Yesterday 21:31”. SB explained that “[y]esterday” was March 2, 2021 at 9:31 p.m. She stayed with Uncle P that night. As noted above, the Crown agreed during submissions that these messages do not fall under the res gestae exception.
[12] The text messages sent on March 3, 2021 start on page 2, under the timestamp “Today 07:33”. SB explained that Uncle P dropped her off at the accused’s residence that morning after 7 a.m. Uncle P later texted SB asking “U good??”. This prompted an exchange of several texts between SB and Uncle P in which SB told Uncle P that she tried talking to her uncles about her father’s behaviour, but her uncle R said he couldn’t do anything. SB texted that she was “brought downstairs” and “he’s on me” (“he” being the accused). She also texted “he keeps telling me to go to sleep” and that he told her “I’m gonna cuddle you” to which SB reported she replied, “Im your kid n[****] iM your pickney[1] dem your my fucking father”. She also texted, “his hand is still on me P I wanna fucking die p I do I really do … he won’t let me go won’t even let me fuckin pee”. SB also told Uncle P that she was waiting for a counsellor to call her back as she had texted her CAS (i.e., Children’s Aid Society) worker at 8 a.m. and asked the worker to call her at 9 a.m. SB then texted “I’m on the phone with her j[ust ]n[ow]” to Uncle P, but then texted him that her CAS worker “can’t do anything right now”, she would have to stay at a shelter until a place or foster home was found.
[13] At trial, during her examination in-chief, SB testified that these text messages were sent before the accused had sexually assaulted her. Further, during cross-examination, SB explained that her texts on page 3 – that the accused “brought her downstairs” and “he’s on me” – referred to the accused telling her that she did not need a boyfriend as she had him. In cross-examination, SB testified that she did not believe the messages on page 3 were sent when she was in bed with the accused.
[14] SB testified that the texts starting on page 9 of Exhibit “A” were sent during and immediately after the alleged sexual assault. At the time, she was lying in bed with her head fully underneath the blankets. She texted without the accused’s knowledge as his head was above the blankets. The accused was lying with his stomach against her back in a “spoon” fashion.
[15] The texts starting on page 9 read as follows:
[5 photos which form category (iii) appear on pages 10-11]
C. The Governing Legal Principles
[16] The text messages identified in paragraph 3(ii) are out of court statements. They are presumptively inadmissible if tendered for the truth of their contents which the Crown seeks to do in this case.
[17] An exception to the general rule against the admission of hearsay evidence exists for excited or spontaneous utterances that are reasonably contemporaneous with the alleged occurrence. This is referred to as the res gestae exception. If admissible as a hearsay exception, the utterance is not barred from admission by the rule against prior consistent statements: see David M. Paciocco, “The Perils and Potential of Prior Consistent Statements: Let’s Get it Right”, (2013) 17 Can. Crim. L. Rev. 181, at p. 192 (“Paciocco, ‘Prior Consistent Statements’”).
[18] A res gestae statement is admissible where “the statement itself forms part of the incident that gives rise to the charge”: R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 161, at para 35.
[19] Strict contemporaneity between the event and the statement is not required; reasonable contemporaneity will suffice. The circumstances in which the utterances were made must be such that the possibility of concoction or deception can safely be discounted. If so, the evidence is admissible. It is the stress and trauma of the triggering event that provides an assurance of reliability. The declarant’s mind is said to be so dominated by the event that the utterance is an instinctive reaction without any “real opportunity for reasoned reflection or concoction”: R. v. Camara, 2021 ONCA 79, 400 C.C.C. (3d) 490, at para. 85. See also R. v. MacKinnon, 2022 ONCA 811, at paras. 41-44.
[20] The focus of the inquiry, however, is not strictly temporal. Rather, the totality of the circumstances surrounding the statement must be considered to determine whether the possibility of concoction or distortion can be safely discounted: see R. v. Dakin (1995), 1995 CanLII 1106 (ON CA), 80 O.A.C. 253 (Ont. C.A.), at para. 20; R. v. Nguyen, 2015 ONCA 278, 125 O.R. (3d) 321, at paras. 149-50; Camara, at paras. 83-85.
[21] It is not uncommon for statements made during 911 calls to be admitted under the res gestae exception: see R. v. Brown, 2015 ONSC 4121, 22 C.R. (7th) 118, at para. 34.
[22] The Crown argued that SB’s text messages are akin to a 911 call as they are a cry for help. The Crown relied on other cases in which text messages have been admitted under the res gestae exception: see R. v. M., 2020 ONSC 3636, at para. 42; R. c. Vaknin, 2021 QCCQ 6594, at paras. 99-113; R. v. R.A., 2021 ONSC 7044, at paras. 43-51.
[23] The defence disputes the analogy to 911 calls given the many distinguishing features between 911 calls and text messages. For instance, text messages are written, not verbal utterances. Text messages are devoid of the declarant’s emotion and tone. Further, text messages are open to potential manipulation, deceit, and misinterpretation.
[24] The defence relied on R. v. N.W., 2018 ONSC 774, a summary conviction appeal in which the court directed a new trial due to the trial judge’s error in admitting text messages under the res gestae exception. In doing so, the court considered the Court of Appeal for Alberta’s decision, R. v. D.L.D., 2014 ABCA 218, 577 A.R. 363, in which the court found that text messages sent at the time of an alleged sexual assault “could qualify as excited utterances”: D.L.D, at para. 20. In D.L.D., the trial judge fell into error by relying on the text messages for the truth of their contents in the absence of a supporting evidentiary record given that no voir dire was conducted. Similarly, in N.W., the texts were admitted without a voir dire and then improperly used at trial to corroborate the complainant’s testimony.
[25] The divided jurisprudence on the admissibility of text messages under the res gestae exception to hearsay is not surprising. As the defence pointed out, text messages are distinguishable from 911 calls in many ways. Accordingly, each case will turn on its own unique circumstances.
[26] By their very nature, 911 calls are typically “cries for help”. They share many common features, including the existence of an independent accurate and full recording of the call. The nature and purpose of 911 calls are also similar in that the caller speaks directly with a public servant to report an incident and request emergency services.
[27] In contrast, text messages bear none of these hallmarks of reliability. Aside from their digital format, text messages often share no common features. Even if they appear on their face to be a cry for help, they are vulnerable to misinterpretation and/or distortion, particularly if there is no knowledge of the nature and history of the parties’ relationship and the purpose of the messages. Consequently, text messages must be carefully assessed to determine whether in fact they are a “cry for help” that is uttered in the pressure of the moment before an opportunity to concoct has arisen.
[28] In this case, the defence argues that SB’s text messages provide no assurance of contemporaneity and therefore do not fall within the res gestae exception. Nor do the texts meet the test of necessity and reliability for admission under the principled approach.
[29] In considering the admissibility of this evidence, I am mindful of the distinction between threshold and ultimate reliability. This distinction reflects the important difference between admission and reliance. A difference that remains important even in judge alone trials. For purposes of admissibility, I am only concerned with threshold reliability: see R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 50.
[30] Evidence falling within a traditional exception is presumptively admissible without subjecting the proposed evidence to the test of necessity and reliability for admission under the principled exception to hearsay. It is the rare case where a hearsay statement falling within a traditional exception would fail to satisfy the indicia of reliability and necessity: see Nguyen, at para. 145; R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 15; MacKinnon, at para. 32.
[31] The onus to establish a “rare case” exception falls on the party wishing to invoke it: MacKinnon, at para. 51. Further, the threshold test for exclusion is high. Consequently, if SB’s text messages fall within the spontaneous utterance exception, the onus is on the defence to establish that it falls within the “rare case” exception based on “special features” that render it unreliable and therefore inadmissible: MacKinnon, at paras. 44-48. However, such special features, should not include factors concerning the declarant’s honesty as this goes to ultimate weight, not admissibility: see MacKinnon, at paras. 44-51.
D. Analysis
[32] In this case, I am not satisfied that SB’s text messages identified in paragraph 3(ii) fall within the res gestae exception to the hearsay rule.
[33] I will first deal with the texts on pages 2 to 8. On SB’s own testimony, these were sent before the sexual assault occurred. This is supported by the content of the texts themselves which suggest SB was talking to her CAS worker “jn” (i.e., just now). If the sexual assault had yet to occur, it cannot be said that SB’s messages were an instinctive response to a dramatic triggering event.
[34] The text messages on pages 9, and 12 to 14, are different in that they were purportedly sent during and immediately after the alleged sexual assault. Unless they fall within the res gestate exception their admission for the truth of their contents runs afoul of the rule against prior consistent statements.
[35] In my view, this case is similar to N.W. To find that the texts were generated in a state of emotion that dominated SB’s mental state presupposes the truthfulness of SB’s testimony that the messages were created and sent at the time of the alleged sexual assault: see N.W., at para. 60. There is an absence of independent evidence, however, that a dramatic event occurred. SB’s testimony on its own does not provide the assurance of reliability required for admission under the res gestae exception. To admit the text messages in these circumstances would violate the rule against the admission of prior consistent statements.
[36] Nor do I agree that the texts are admissible as narrative. The narrative of what happened on March 2, 2021, and the morning of March 3, 2021, was fully explained by SB in her testimony. As stated by MacPherson J.A. in R. v. A.E.R. (2001), 2001 CanLII 11579 (ON CA), 156 C.C.C. (3d) 335 (Ont. C.A.), at para. 15, “[t]he prior statements must be an essential part of the narrative in order to be admitted and are only admissible for the purpose of understanding the witness’ story.” The court in A.E.R. also noted that, when admitted, only a general description of the prior statement should be provided.
[37] In my view, the admission of the text messages is not truly essential yet would “pirate an otherwise inadmissible prior consistent statement into evidence”: see Paciocco, “Prior Consistent Statements”, at p. 198.
[38] The date and timestamps, however, are admissible. This computer-generated data does not run afoul the rule against hearsay evidence: see David M. Paciocco, “Proof and Progress: Coping with the Law of Evidence in a Technological Age” (2013), 11 C.J.L.T. 181, at pp. 193, 198. In this case, the automatic computer-generated data includes the timestamps showing a missed call at 10:09 a.m. and a second missed call at 10:31 a.m.
[39] Finally, with respect to the photographs, as these are in the form of screenshots and not originals, they fall within the term “electronic document” as defined in s. 31.8 of the Canada Evidence Act, R.S.C. 1985, c. C-5.[^2]
[40] For purposes of admission, s. 31.1 of the Canada Evidence Act provides that the burden is on the party seeking the admission of the electronic document to prove its authenticity by evidence capable of supporting a finding that the document “is that which it is purported to be”. This is a low threshold: see R. v. Martin, 2021 NLCA 1, 397 C.C.C. (3d) 293, at para. 31; R. v. C.B., 2019 ONCA 380, 146 O.R. (3d) 1, at paras. 63-68; R. v. Hirsch, 2017 SKCA 14, 353 C.C.C. (3d) 230, at paras. 16-21.
[41] This low threshold of authentication is satisfied by SB’s testimony that she took the photos with her cell phone on March 3, 2021, and that the screenshots of her phone were taken by the police later that day. This is some evidence capable of supporting a finding that each screenshot of the photos “is that which it is purported to be” as required for admission under s. 31.1 of the Canada Evidence Act. The photographs’ ultimate use when determining the case is a matter of weight, not admissibility: see Martin, at para. 47; C.B., at para. 78.
E. Conclusion
[42] In the result, I am not satisfied that any of the texts are admissible.
[43] The five photographs and the timestamps are real evidence that is relevant to the issues in this case. Accordingly, they are admissible.
Joan M. Barrett J.
Released: January 26, 2023
COURT FILE NO.: CR-21-30000336
DATE: 20230126
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
- and -
S.R.
RULING
Hearsay Application
J.M. Barrett
Released: January 26, 2023
[^1]: SB testified that “pickney” is a Patois word for child.
[^2]: The applicability of the Canada Evidence Act was not the subject of submissions by the parties.