COURT FILE NO.: CRIMJ(P) 21/626
DATE: 20230202
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
Mr. M. Thomaidis, for the Crown
- and -
G. D.
Mr. A. Gold and Ms. E. Williams, for the Accused
HEARD: November 22, 2022
REASONS FOR DECISION
The court issued an order, under section 486.4(1) of the Criminal Code, prohibiting any information that could identify the complainant in this case from being published in any document or broadcast or transmitted in any way. This decision has been edited to comply with this order and may be published.
Stribopoulos J:
Introduction
[1] The accused, Mr. D, faces historical charges of sexually abusing the complainant, his niece, over several years of her childhood. The complainant, now in her thirties, reported her allegations to the police on August 1, 2019, resulting in Mr. D being arrested and charged.
[2] At Mr. D’s trial, the Crown planned to introduce into evidence an email the complainant sent to him in June 2018. The Crown also intends to elicit evidence concerning three telephone conversations between the complainant and Mr. D after the email was sent, including a call in December 2018 that the complainant recorded. The Crown hopes to make the recording an exhibit at trial.
[3] Mr. D applied for an order to exclude from evidence the email and the single telephone conversation that the complainant recorded. He claims that evidence to be more prejudicial than probative. However, during the hearing, the Crown conceded that the email was inadmissible because it primarily contains the complainant’s prior consistent statements.
[4] Given the Crown’s concession, I must decide, as a case management judge, whether the recorded telephone conversation is more prejudicial than probative and, therefore, inadmissible. This decision addresses that issue.
[5] These reasons will proceed in three parts. The first part will contextualize the evidence that is the subject of this application. The next part will summarize the parties’ positions. Finally, these reasons will explain the governing principles and then apply them to decide whether the recording is more prejudicial than probative and, therefore, inadmissible.
I. The Evidence at Issue in Context
[6] The complainant alleges that Mr. D, her paternal uncle, began sexually abusing her when she was nine. She claims the abuse persisted over several years and only ended when she was 17 years old because she finally realized that it was wrong and distanced herself from Mr. D.
[7] For years, the complainant claims she kept secret what Mr. D had done to her during her childhood. However, by her early thirties, as she struggled with the long-term effects of the abuse and after having a child and worrying about Mr. D touching her son during family visits, she finally decided to take action.
[8] On June 18, 2018, the complainant sent an email to Mr. D in which she summarized her abuse allegations against him and the toll the abuse had taken on her life. At one point in the email, she wrote: “Let me make you aware that this is a crime in Canada, and the more I work with the Government of Canada and hear what people like you do to famil[ies], the more I want to get revenge and justice.” In that email, she demanded that he transfer $100,000 into her bank account by July 1, 2018, to “compensate me for the 24 years of damage I am enduring,” and shared her banking details with him. Finally, the complainant warned Mr. D: “This is the only way I will stay quiet and learn to live with what you have done to me as a child and during my teenage years.”
[9] At the preliminary inquiry, the complainant testified that the day after she sent the email, Mr. D called her on the telephone and agreed to pay her the money she had demanded. However, the complainant testified that she called him back the next day and told him she did not want the money. She cited two reasons for deciding to decline the money. Firstly, she realized that asking him for money was “not okay.” Secondly, the complainant thought that because Mr. D so readily agreed to pay, his doing so would not provide her with “the justice that [she] deserve[s].” According to her testimony, the complainant told Mr. D during that conversation that she wanted him “to suffer” and that giving her money would not make him “realize what he’s done to [her].” She testified that during that conversation, she also told him she would go to the police.
[10] Later that year, in December 2018, the complainant called Mr. D again. However, on this occasion, she recorded their telephone conversation which lasted seven minutes. The recording from that call is the subject of this application. During her testimony at the preliminary inquiry, when asked why she recorded their conversation, she explained: “in my heart, I knew one day I would seek justice, and I was protecting myself.”
[11] In December 2018, the complainant was about to move back to Ontario after living in Alberta for several years. The complainant and Mr. D’s recorded telephone conversation was mainly comprised of the complainant setting down ground rules concerning what she expected of him once she and her family were back in Ontario. That included her insisting that Mr. D cancel an upcoming family get-together that he had planned to host at his home because she did not want to attend, and her parents kept asking her to explain why she did not want to go. The complainant also warned Mr. D twice during the call not to “come in front of” her husband because he would kill him.
[12] During the call, the complainant told Mr. D, “I have decided I am going to go to the cops,” and “everything I wrote to you in that email is true.” And she also said, “I was nine years old when you kissed me. You took me out of school. You took me to hotels. You did bad things to me.” Further, she told him that she planned on going to the police. To each of these comments by the complainant, Mr. D responded, “Mm-hmm.” Finally, when the complainant asked Mr. D if he wanted to say anything, he replied: “The only thing I can say is sorry. … I apologize to you, and whatever you said, we will do that.” Near the end of their conversation, when she warned him that “it will come out,” he implored her, “please don’t do this.”
[13] The complainant eventually reported her historical allegations to the police on August 1, 2019. The next day, the police arrested and charged Mr. D with the offences for which his trial will commence late next month.
[14] Mr. D testified on an earlier application in his effort to establish that the confessions rule governed the admissibility of his statements to the complainant during their telephone conversations. When he read the email from June 2018, he testified that he understood the complainant’s reference to working for the Government of Canada as referring to her working “in law enforcement and as a parole officer.” Asked if he believed that the complainant could influence any prosecution or proceeding against him, he responded:
In my thoughts, any woman can go to the police and file a complaint against a man and – and doing that; then the police will come and arrest that man, no question[s] asked. I know that she’s in law enforcement and working as a parole officer, and her husband is a jail guard. They can do anything, and I was so scared.
[15] In part, Mr. D explained that belief by referencing an earlier experience in the 1990s involving his ex-wife. He testified that his ex-wife had gone to the police and made false allegations against him, which led to his arrest. As a result, he spent time in jail. However, he testified that the Crown eventually withdrew the charges against him in that earlier case about a year after his arrest when his ex-wife failed to attend the preliminary inquiry.
[16] Mr. D testified that he only said what he did during the recorded telephone conversation out of fear. He maintained that he was scared for two reasons. First, the complainant “openly threatened me that her husband would kill me.” And second, he worried the complainant would “go to the police station and file a complaint against me and get me arrested and ruin my life.” Mr. D denied that he was sorry about anything, given that “there was nothing to be sorry about.”
[17] In my decision on Mr. D’s earlier application, I ruled that the complainant did not qualify as a “person in authority” because she was neither acting for the police nor prosecutorial officials during her interactions with Mr. D. Consequently, the Crown is not required to prove the voluntariness of what Mr. D said during his telephone calls with the complainant as a precondition to them being admissible: see R. v. G.D., 2022 ONSC 1541.
[18] Having placed the evidence that is the subject of this application in context, these reasons turn next to summarize the parties’ competing positions concerning the admissibility of the evidence at issue.
II. Positions of the Parties
[19] Mr. D applied for an order excluding the complainant's email and the recorded telephone conversation from evidence because he claims the prejudicial effect of that evidence outweighs its probative value.
[20] Defence counsel submits that the email and the telephone conversation have minimal probative value. First, Mr. Gold points out that the email consists mainly of the complainant's prior consistent statements, which are generally inadmissible, primarily for lacking probative value because they are self-serving and hearsay: see R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5.
[21] Turning to the telephone conversation, Mr. Gold notes that the complainant did not detail her allegations during the call, which leaves a listener to speculate regarding what the allegations concern. Additionally, he observes that Mr. D says very little during the conversation, and what he does say is spoken meekly in a voice of submission, resulting in a highly debatable “admission.” Finally, Mr. Gold argues that the voluntariness of Mr. D’s comments is suspect, given the threatening nature of the call and his client’s motivation – based on his prior experience with his ex-wife – to appease the complainant by saying what she wanted to hear.
[22] For these reasons, Mr. Gold contends that the email and the recorded telephone conversation ultimately have minimal probative value.
[23] In terms of prejudice, Mr. Gold argues that if the email were to become an exhibit at trial, the jury would be able to read it “over and over” again, even though it primarily consists of the complainant’s inadmissible prior consistent statements. And, regarding the few comments Mr. D made during the telephone call, his explanation for what he said will require him to reference his experience when he faced charges involving his ex-wife. The result will be a trial within the trial involving a distracting, time-consuming side issue.
[24] As a result, Mr. Gold submits that the prejudicial effect occasioned by the admission of the email and telephone conversation would outweigh any minimal probative value that evidence might otherwise have.
[25] Mr. Thomaidis began his submissions for the Crown by noting that he would not seek to admit the email but for the recorded telephone conversation, with the former being necessary to place the latter in context. However, during the hearing, Mr. Thomaidis conceded that the Crown does not require the actual email to properly contextualize the recorded telephone call.
[26] In that regard, he agreed that the Crown could elicit evidence from the complainant that she sent Mr. D an email on June 18, 2018 concerning the sexual abuse she alleges he subjected her to and demanding that he pay her $100,000 as compensation for what he had done. Mr. Thomaidis acknowledged that that would suffice to contextualize what the complainant said during the call. After making that concession, Mr. Thomaidis focussed the balance of his submissions on the admissibility of the recorded telephone call.
[27] Mr. Thomaidis submits that the call unmistakably involves the complainant telling Mr. D that he abused her as a child and him admitting as much by apologizing to her. That Mr. D might have an innocent explanation for saying the things he did during the call does not extinguish the telephone conversation’s probative value, argues Mr. Thomaidis.
[28] Mr. Thomaidis submits that there is no potential prejudice here. Since Mr. Thomaidis conceded that he will not seek to make the email an exhibit, a limiting instruction could more than adequately protect against the jury somehow misusing the complainant’s evidence that she sent an email to Mr. D about what she claims he did to her. The trial judge can instruct the jury they are hearing evidence about the email to put the recorded conversation in context and that they are not to use the email for any other purpose, in particular, that they are not to credit the complainant’s account simply because she may have said similar things in the email she sent.
[29] Mr. Thomaidis submits that no prejudice would flow from Mr. D explaining, should he testify, that his comments during the recorded telephone call were the result of his prior experience of being arrested and held in custody because of a false accusation by his ex-wife. In that regard, Mr. Thomaidis disclaims any intention of challenging that evidence by attempting to relitigate the prior incident involving Mr. D’s ex-wife. In effect, Mr. D will be able to explain why he said what he did during the telephone call should he choose to testify, and it will be for the jury to weigh that explanation along with all the other evidence. Accordingly, Mr. D will not be required to defend himself against his ex-wife’s allegations at this trial, so there will be no second trial within this trial.
[30] Ultimately, the Crown submits that the recorded telephone conversation has significant probative value and that its admission will not occasion any prejudice. Therefore, the court should dismiss Mr. D's application to exclude it.
III. Law and Analysis
[31] It is now well established that trial judges have the discretion to exclude relevant and material evidence where its prejudicial effect outweighs its probative value: see R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670 at pp. 697-698, and at pp. 729-746, per La Forest J. dissenting; R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, at pp. 610-612; R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at pp. 20-21; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 40; R. v. Schneider, 2022 SCC 34, 418 C.C.C. (3d) 137, at para. 59.
Probative Value
[32] In assessing probative value, it is necessary to consider the degree to which the evidence is relevant to the material issues in the case and the strength of the potential inference(s) that the evidence is logically capable of supporting: see R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 26; R. v. Robertson, 1987 CanLII 61 (SCC), [1987] 1 S.C.R. 918, at p. 943; Schneider, at para. 60.
[33] Additionally, when assessing probative value, judges must necessarily “consider the credibility and reliability” of the evidence while remembering “that they are not charged with resolving the factual issues before them:” David M. Paciocco, Palma Paciocco and Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020), at p. 51; see also R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, at paras. 95-98; Handy, at para. 134. In that respect, the judge’s task is to decide “the threshold question of ‘whether the evidence is worthy of being heard by the jury’ and not ‘the ultimate question of whether the evidence should be accepted and acted upon’: Hart, at para. 98, quoting R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at para. 89.
[34] The audio recording at issue on this application has significant probative value in light of the principles that inform the required assessment. Several reasons compel this conclusion.
[35] First, the call does not raise any credibility or reliability concerns regarding what was said during the call, given that there is a high-quality recording of the entire telephone conversation between the complainant and Mr. D.
[36] Second, there is nothing equivocal about the recorded telephone conversation that would leave the jury any room to speculate about its meaning. The complainant will testify about the sexual abuse she alleges Mr. D subjected her to during her childhood. As noted, she will also testify to sending an email to Mr. D on June 18, 2018, in which she detailed her allegations and demanded financial compensation from him.
[37] During the call, the complainant told Mr. D, “everything I wrote to you in that email is true.” Beyond that, she said: “I was nine years old when you kissed me. You took me out of school. You took me to hotels. You did bad things to me.” Mr. D's only response to these unequivocal accusations of childhood sexual abuse was: “Mm-hmm.” And when asked whether he had anything to say, he replied: “The only thing I can say is sorry ... I apologize to you.”
[38] Third, given what was said and not said during the call, the recording is directly relevant to what will likely be the critical issue in this case: whether Mr. D sexually abused the complainant as she alleges. The jury may fairly conclude that Mr. D could reasonably have been expected to reply to the complainant’s accusations during the telephone call and that he accepted the truth of what she was saying by not responding with a denial: see R. v. Baron and Wertman (1976), 1976 CanLII 775 (ON CA), 14 O.R. (2d) 173 (C.A.), at p. 187; R. v. Warner (1994), 1994 CanLII 842 (ON CA), 21 O.R. (3d) 136 (C.A.), at p. 144; R. v. F. (J.), 2011 ONCA 220, 105 O.R. (3d) 161, at para. 46, aff’d without reference to this point, 2013 SCC 12, [2013] 1 S.C.R. 565; R. v. Robinson, 2014 ONCA 63, 118 O.R. (3d) 581, at paras. 48-58.
[39] Even more importantly, when ultimately pressed to respond, Mr. D did not deny the complainant’s allegations. Instead, he apologized. The jury could reasonably construe his apology as his express admission of the complainant’s accusations during the call. Given these potential uses of the telephone conversation, all of which cut directly to the heart of this case, the recording has considerable probative value.
[40] Finally, there is no lessening of the call’s probative value because Mr. D might testify and provide an innocent explanation for what he said and did not say during the call. It would be an error for this court to accept Mr. D’s explanation and discount the call’s probative value because of it. Doing so would confuse the threshold question that this court must decide – whether the evidence is worthy of being heard by the jury – with the ultimate question that is exclusively for the jury to determine, which is whether the evidence should be accepted and acted upon: Hart, at para. 98.
[41] As a result, for these reasons, the audio recording of the telephone call has significant probative value.
Prejudicial Effect
[42] The law primarily aims to prevent two potential forms of prejudice that proffered evidence may sometimes occasion: "moral prejudice" and "reasoning prejudice."
[43] "Moral prejudice" concerns the risk that the evidence will engender an emotive rather than a reasoned response from jurors. The law endeavours to guard against the admission of evidence that appeals to jurors’ prejudices or has such an overpowering effect on their emotions that it will interfere with their capacity to evaluate it rationally and objectively. Some exclusionary rules of evidence have their justification in that sort of concern, like the rules which generally foreclose evidence concerning a sexual assault complainant's prior sexual history or an accused's uncharged criminal conduct. However, in cases where evidence likely to result in moral prejudice evades an established exclusionary rule – for example, graphic evidence like gruesome crime scene or autopsy photographs – the court's discretion to exclude evidence which is more prejudicial than probative serves as a means of safeguarding the integrity of the trial process from its potential caustic effects: see Paciocco, Paciocco and Stuesser, at p. 52; Handy, at paras. 31, 42, 72; Hart, at para. 74; R. v. D. (L.E.), 1989 CanLII 74 (SCC), [1989] 2 S.C.R. 111, at pp. 127-128.
[44] "Reasoning prejudice" concerns evidence that can distract the jury from what should be its proper focus. This relates to situations where, for example, the evidence will inordinately consume valuable court time, redirect attention toward extraneous matters, or impair the jury's ability to assess it rationally and dispassionately: see Paciocco, Paciocco and Stuesser, at pp. 52-53; Handy, at paras. 31, 144; Hart, at para. 74; R. v. Ansari, 2015 ONCA 575, at para. 108.
[45] Finally, prejudice may also be occasioned by admitting evidence if "there was a significant unfairness associated with obtaining it, such that it would render the accused's trial unfair": Schneider, at para. 59; see also Buhay, at para. 40. For example, if a private actor to whom neither the Charter nor the common law confessions rule applies were to use violence or threats of violence to coerce an admission from an accused, the court could undoubtedly exclude such evidence to ensure the accused receives a fair trial: see R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, at para. 36; R. v. Wells, 2003 BCCA 242, 174 C.C.C. (3d) 301, at paras. 64; R. v. Pearce (M.L.), 2014 MBCA 70, 318 C.C.C. (3d) 372, at paras. 61-62. If an accused established such a claim, the resulting admission would also give rise to rather obvious reliability concerns that would significantly lessen its probative value.
[46] Applying these principles to the circumstances of this case, admitting the audio-recorded telephone conversation into evidence would not occasion any prejudice. There are a few reasons for this conclusion.
[47] First, nothing about the recorded conversation poses any danger of occasioning moral prejudice. The recording does not contain anything that could risk interfering with the jury's ability to evaluate it rationally and objectively and undertake anything other than an appropriate assessment of its probative value.
[48] Second, admitting the recording will not occasion any reasoning prejudice. That Mr. D might choose to testify that he did not deny the allegations and apologized to appease the complainant because of his negative experience with the criminal justice system in the 1990s involving his ex-wife will not open the door to the Crown attempting to relitigate that prior incident. Those charges were withdrawn, and Mr. D, as the Crown concedes, is presumed innocent of his ex-wife’s allegations. As a result, his explanation for why, when faced with the complainant's accusations, he remained silent and, when pressed, apologized to her, will not risk a distracting and time-consuming side issue overtaking his trial. In other words, there will be no trial within this trial concerning his ex-wife's allegations.
[49] Finally, having listened to the recording several times, I am far from convinced that there was anything unfair about how Mr. D’s apparent admissions came about. Although it is evident from her voice that the complainant was upset during the call, her tone was calm and measured. The only overt “threat” she issued during the call was that she intended to go to the police. Notably, her comments about Mr. D avoiding her husband came more as a warning than a threat. The complainant never threatened Mr. D with violence during the call. Most significantly, the complainant did not suggest or imply that there would be any negative consequences for Mr. D were he to have not admitted what he did or apologized for his actions.
[50] In short, admitting the recorded telephone conversation into evidence would not occasion any prejudice.
Conclusion
[51] Mr. D has failed to establish that the recorded telephone conversation would have any prejudicial effect, let alone to a level sufficient to outweigh its significant probative value.
[52] Accordingly, the recording is ruled admissible at Mr. D’s trial.
Signed: “J. Stribopoulos J.”
Released: February 2, 2023
COURT FILE NO.: CRIMJ(P) 21/626
DATE: 20230202
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and -
G. D.
REASONS FOR DECISION
Stribopoulos J.
Released: February 2, 2023