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
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.
HEARD: October 16, 2023
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of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner.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: Recent Fabrication
1. Nature of the application
[1] The Crown seeks to admit prior consistent statements of the complainant made to her friend S. Di. on the night of the alleged sexual assault of the complainant by A.H. The Crown submits that the evidence is necessary to rebut an allegation of recent fabrication.
[2] The Crown’s position is that the defence in cross-examination of the complainant suggested that she fabricated her story after a particular motive or circumstance arose. The Crown specifically refers to two specific aspects of the cross-examination.
[3] The alleged sexual assault occurred on November 19, 2018, in the evening. The Crown submits that defence suggested in cross-examination that the complainant made up the allegation that the sexual activities between her and A.H. were not consensual as rumours were going around the school the following day that she had sexual activity with C.S. the night before and that she wanted to get out ahead of the rumours.
[4] The Crown also submits that the defence raised recent fabrication in the cross-examination of the complainant by suggesting that time was running out for her on November 20, 2018 to get the Plan B pregnancy prevention and that she had to tell her mother something to get taken to a clinic/doctor/hospital.
[5] The Crown suggests that these 2 lines of cross-examination raised allegations of recent fabrication and the Crown should therefore be permitted to call S. Di., the complainant’s friend, to give evidence of the complaint’s communications with her on the night of November 19, 2018.
[6] The complainant testified in-chief that on November 19, 2018 she communicated by Snapchat with S. Di., her best friend, and went through all of it and realized what had happened and was crying. She testified that she realized she never said yes to any of the sexual things and said no many times.
[7] In terms of what S. Di. will say regarding the Shapchat she engaged in with the complainant on November 19, 2018, I have been referred to the following transcripts:
- In S. Di’s statement to police on December 5, 2018 she was asked what the complainant initially said to her over Snapchat on the evening of November 19, 2018, and S. Di. said the following:
Q. So, she told you all this over Snapchat?
A. Um, no, she, no she told me, like, a bit, but I didn’t wanna, like, keep asking her for information, ‘cause obviously, it was, like – she was scared and worried. So, the next day she told me more. And then when she told my friend [M.] on the Wednesday, she told me, like, full detail, like, in person.
- On May 11, 2021, S. Di. was examined in-chief by defence counsel at the Preliminary Hearing. The questions and answers regarding her conversation with the complainant on November 19, 2018 are as follows:
Q. I understand that around about November 19th or thereabout in 2018, your friend L.J. contacted you; is that accurate?
A. Yes.
Q. And can you tell Her Honour approximately when on November 19th she contacted you?
A. Probably around 10:00 or 11:00 p.m. at night.
Q. All right. And how did she contact you?
A. Via Snapchat.
Q. All right. And did L. tell you anything?
A. She had just told me like what had happened, that she’d been raped, but I didn’t ask her any details at that time.
- On May 11, 2021, S Di. was cross-examined by the Crown at the Preliminary Hearing. The questions and answers regarding her conversation with the complainant on November 19, 2018 are as follows:
Q. I want to make sure I understood your evidence correctly, Ms. Di. You said that on the evening of the 19th around 10 or 11 at night, you were Snapchatting with L.J.; right?
A. Yes.
Q. And she told you two pieces of information about the fact that she had just been assaulted, she told you where, that it was a parking garage is your recollection?
A. Yes.
Q. And she said that there were four gentlemen involved; right, so you said P., C., D. and A., and she said she had never met A. before; is that right?
A. Yes.
[8] The Defence position is that the allegations by the complainant of non-consensual sexual activity between the complainant and A.H., the motive to fabricate, started before the complainant’s conversation with S. Di. and started when L.J’s mother picked her up at the mall gym just after the alleged incident.
[9] The motive relates to her not wanting to get punished for breaking her mother’s rules and to not wanting her mother to worry. This motive arose before the conversation. Further, the defence position is that S. Di’s testimony in regard to the conversation is vague and not consistent with the complainant’s evidence. The defence opposes the Crown’s request.
[10] The application was argued before me on October 16, 2023. On October 17, 2023 I advised of my decision, with reasons to follow. These are my reasons.
2. The Law
[11] In Watt’s Manual of Criminal Evidence, 2023, (David Watt, Watt’s Manual of Criminal Evidence, 2023 ed., (Canada: Carswell, 2023.) at paragraph 19.08 is a summary of the law with regard to prior consistent statements:
The prior consistent statements of a witness are generally excluded. The rule is known by several names, including, the rule against
i. narrative
ii. self-corroboration; and
iii. self-serving statements.
The rule is grounded in concerns that evidence may be manufactured by witnesses through mere repetition of a consistently false story. And that trials will be prolonged unnecessarily by repetitious evidence of little probative value. What is excluded is not hearsay because it is not tendered in proof of the truth of what is said. The prohibition bars evidence of the statement from both the declarant and the recipient.
The rule against narrative has several exceptions. Evidence of prior consistent statements of a witness may be admitted, for example:
i. in rebuttal of an allegation of recent fabrication;
ii. as evidence of prior identification;
iii. as evidence of recent complaint;
iv. as part of the res gestae;
v. as evidence of the physical, mental or emotional state of the declarant;
vi. as evidence of narrative; and
vii. as evidence of narrative as circumstantial evidence.
The evidence is received as an exception to the exclusionary rule, not for other or different purposes.
[12] The Crown is relying on the exception for evidence of a prior consistent statement in rebuttal of an allegation of recent fabrication.
[13] The Crown’s Memorandum of Law Re: Recent Fabrication sets out at paragraphs 2-7 sets out the law as follows:
Prior consistent statements may be admissible where it has been suggested that a witness has recently fabricated his or her evidence (R v. Stirling, 2008 SCC 10, at para. 4 (“Stirling”)). The opposing party can introduce statements that the witness made before the alleged reason for fabrication arose that are consistent with the witness’ trial testimony (R v. J.A.T., 2012 ONCA 177, at para. 98, (“J.A.T.”)).
The purpose of the prior consistent statement is to show that the witness gave the same account before the alleged reason or motive to fabricate arose (R v. Kailayapillai, 2012 ONCA 248, at para. 40: aff’d [2014] S.C.C.A. No. 35, (“Kailayapillai”). The statement is not admitted to prove the truth of its contents; it is only admitted to counter the challenge of recent fabrication (D.B., at para. 36; R v. G.J.S., 202 ONCA 317 at para. 4; R v. D.K.., 202 ONCA 79 at para 4.). Even where properly admitted to counter an allegation of recent fabrication, it is an error to go further and rely on the prior consistent statement for proof of its contents (R v. A.V., 202 ONCA 58, at para. 5.)
The suggestion that the witness has concocted their story does not need to be express (Stirling, at para. 5). The allegation can be made out “in light of the circumstances of the case and the conduct of the trial” (K.T, at para. 37). The fabrication does not need to be “recent”; the alleged false story only needs to have been concocted after the event that is the subject matter of the witness’s testimony (Stirling, at para. 5).
Further, the source of concoction must be distinct from the event that is the subject of the witness’s testimony. In R v. Kailayapillai, the Court of Appeal held that cross-examination that seeks to show that the accused’s testimony is untrue is not sufficient to invoke the exception (Kailayapillai, at para.44). In that case, the Crown’s cross-examination sought to demonstrate that the accused was lying because he was the perpetrator. That was not a basis, however, to admit it prior to consistent statement under this exception. There must be an implicit or explicit suggestion that something occurred that triggered the false store (Kailayapillai, at para. 43).
The triggering event can simply be circumstances that create a false story. For instance, in R v. Slater, 2014 ONSC 1518, the court found that the defence had implicitly suggested a recent fabrication by submitting that the deterioration of the victim’s memory created a version of events that could not be relied on (at paras. 63-64). Therefore, the court allowed a prior consistent statement made before the victim’s memory problems arose to be admitted in rebuttal to the allegation of recent fabrication (at para. 64).
The timing of the prior consistent statement is central to whether or not it is admissible (R v. Ellard, 2009 SCC 27, at para. 33, (“Ellard”)). Only statements that are made before the event that gave rise to the motive or circumstances to fabricate the story can be characterized as prior consistent statements (K.T., at paras. 51-53; see also J.A.T., at para. 98). Where counsel puts a statement to their witness that was made after the circumstances that allegedly inspired the fabrication, the statement cannot rebut the allegation of fabrication (Ellard, at para. 34).
[14] As set out in R v. Vassel, 2018 ONCA 721, a bald allegation of fabrication does not amount to an allegation of recent fabrication. There must be an assertion that at a particular point in time, the witness began to make the claim being challenged.
[15] Further, as set out at paragraph 41 of R v. Bourdeau, 2022 ONCA 662, recent fabrication presupposes a particular era or moment in relation to which the fabrication occurred and that the prior consistent statement has probative value when the witness gave an identical version of facts, before the reasons to invent the story occurred.
3. Analysis:
[16] In my view, it is clear from the evidence that the defence position is that the entire allegation by L.J. that the sexual activity between her and A.H. was not consensual was fabricated from the moment L.J’s mother picked her up from the gym on November 19, 2018 and before any Snapchat conversations L.J. had later that night with S. Di.
[17] L.J’s motivation to lie, according to the defence theory, is to avoid being punished for the breach of her mother’s rules. As of November 19, 2018, the complainant had recently completed a period of punishment imposed for her breaches of several parental rules on October 31, 2018. L.J. acknowledges that it was reasonable to assume she would have received a greater punishment for further breaches occurring. L.J. breached similar parental rules on November 19, 2018 to those she breached on October 31, 2018:
She left the gym without telling her mother.
She hung out with friends on a school night.
She hung out with boys her mother did not know nor have any information about and did not pre-approve.
[18] The defence theory is that the fabrication by L.H. that the sexual activity with A.H. was not consensual began even before her mother picked her up from the gym. The motive began before then- the alleged motivation being her fear of getting in trouble.
[19] It is clear on the evidence that L.J. lied to her mother when she contacted her mother to tell her she needed more time at the gym because the gym was busy. She wasn’t at the gym. She had left the gym only minutes after arriving. It was also clear that L.J. lied to her mother when she was not at her normal pick-up spot. She told her mother that she had been at another location in the mall to charge her phone. L.J. testified that her mother yelled at her in the car and accused her of lying. The defence theory is that the motive to fabricate began with fear of her mother’s reaction if her mother found out she had breached the parental rules. All of this occurred before her conversation with S. Di.
[20] I find that the questions asked in the cross-examination of L.J. by defence counsel about word getting around the school the following day and suggesting that the complainant had to “get ahead of the story” because C.S. was talking about a sexual encounter with her cannot be parsed from her fear of getting in trouble for breaking the rules. This was not a stand-alone triggering event.
[21] I also find that the defence cross-examination of L.J. about running out of time to get Plan B birth control and to deal with a possible STI, is also not a stand alone triggering event occurring on November 20, 2018. It is connected to the alleged motive to fabricate in order not to get in further trouble with her parents for breaking the parental rules. This alleged motive existed prior to the complainant’s conversation through Snapchat with S. Di. The allegation is that the complainant had no way to raise this without getting in trouble, without fabricating the lack of consent. It is connected to the alleged motive to fabricate to avoid further punishment. It cannot be parsed from the allegation of motive to fabricate alleged to have arisen prior to the Snapchat conversation. The alleged reason to fabricate arose when the complainant’s mom picked her up on November 19, 2018. The defence position is that the allegedly false story was concocted then, before the Snapchat conversation. The alleged source of the concoction is the fear of punishment from her mother for breaking the rules. The cross-examination regarding the Plan B was simply a further alleged manifestation of the same fear.
[22] Even if I am wrong regarding the questions asked in cross-examination regarding rumours at the school and the complainant’s concern for Plan B being triggering events for allegations of recent fabrication, the evidence of S. Di., based on the transcript I have been provided, are inconsistent as to her version of the conversation. There are 3 different versions. None are identical to the complainant’s version. The evidence is insufficient to establish a prior consistent statement of the complainant. The evidence lacks probative value.
[23] Finally, the closest statement of S. Di. to the complainant’s version occurred in the examination-in-chief by defence counsel at the preliminary hearing on May 12, 2021 that L.J. told S. Di. that she had been raped. This evidence is highly prejudicial to the accused, and the lack of detail makes it lack probative value.
Conclusion:
[24] The Crown’s request to ask Ms. Di’s questions regarding a prior consistent statement of L.J. is denied.
Coats J.
Date: October 25, 2023