Court File and Parties

COURT FILE NO.: CR-21-89-0000 DATE: 2023 10 25 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: His Majesty the King AND: A.H.

BEFORE: Coats J.

COUNSEL: Kelli Frew, for the Crown Charles Spettigue, for Defence

HEARD: October 12, 2023

Publication Restrictions

RESTRICTION ON PUBLICATION Pursuant to s. 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

PUBLICATION RESTRICTION NOTICE By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

Reasons for Ruling Re: EXHIBIT

[1] On October 12, 2023, the Crown requested that it be entitled to file as a numbered exhibit a copy (redacted or as written) of a letter that the complainant wrote to her mother on November 20, 2018, describing the events that were alleged to have occurred on November 19, 2018. I ruled against the Crown’s request and these are the Reasons.

[2] Justice Kurz gave an omnibus ruling on July 27, 2023 regarding pretrial applications which he conducted as case management judge. Although the letter was not specifically addressed in his Endorsement of July 27, 2023, his ruling affected its admissibility as Kurz J. ruled that no evidence could be adduced regarding the sexual activity that occurred in Car 2, including any touching of the complainant. He further ruled that evidence could be adduced that something happened in Car 2 between the male occupants and L.J., and that what happened was not something L.J. wanted to happen. The letter contained details of sexual activity between L.J. and the occupants of Car 2. The Crown did not attempt to submit the letter as a numbered exhibit in the complainant’s evidence in-chief. The defence in cross-examining the complainant with regard to the contents of the letter did not seek to have the letter made a numbered exhibit.

[3] Part way through the defence cross-examination of the complainant, the Crown indicated that it would be seeking to have the letter made a numbered exhibit, which would go to the jury. The Crown alleged that in cross-examination defence counsel had come close to violating, or had violated, Kurz J.’s ruling and that without the letter going in as a numbered exhibit, the jury would be left with the impression that the letter did not bare any resemblance to the complainant’s testimony.

[4] In court, in the absence of the jury, the relevant portions of the cross-examination were played back. I do not agree with the Crown’s position. The defence counsel did suggest that the letter did not bare any relation to her testimony in-chief, but then asked specific questions about the inconsistencies without violating Kurz J.’s endorsement. The complainant did testify as to the portions of the letter that she considered consistent with her evidence in-chief. The letter did not have to be made a numbered exhibit for her to do so.

[5] There is no unfairness to the Crown or complainant by the letter not being made a numbered exhibit. She was asked about the inconsistencies and given an opportunity to testify as to the consistencies. Portions of the letter contain information that if admitted, would be inconsistent with Kurz J.’s evidentiary rulings. There is no basis to reconsider Kurz J.’s endorsement. The Crown did not make an application to re-open his ruling.

[6] Finally, the Crown is proposing that the letter be made an exhibit at trial to show the consistencies between the letter and the complainant’s evidence in-chief. As a general rule, a prior consistent statement of a witness should not be an exhibit at trial, especially where it contains additional information not disclosed in the witness’ testimony: see R. v. R.(A.E.) (2001), 43 C.R. (5th) 340 (Ont. C.A.). This would be the situation in this case if the letter were made a numbered exhibit. There are contents of the letter that were not disclosed in the complainant’s testimony.

[7] For these reasons, the Crown’s request is dismissed.

Coats J. Date: October 25, 2023