COURT FILE NO.: 22-RD14743 DATE: 2024/12/13

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Appellant – and – B.S.L. Respondent

COUNSEL: Cecilia Bouzane and Louise Tansey, for the Appellant Neha Chugh for the Respondent

HEARD: August 14, 2024

Subject to any further order by a court of competent jurisdiction, an order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to section 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.

REASONS FOR JUDGMENT SUMMARY CONVICTION APPEAL

Rees J.

Overview

[1] The respondent, B.S.L., was charged with 11 offences. The Crown withdrew three charges at the outset of trial and proceeded to trial on six counts of breaching probation, one count of uttering threats against the complainant, A.B., and one count of sexual assault of A.B.

[2] Following a trial, the trial judge acquitted B.S.L.

[3] The Crown appeals on two grounds. First, it argues that the trial judge erred by failing to exercise his duties as a gatekeeper and guard against inadmissible evidence of other sexual activity under s. 276 of the Criminal Code, R.S.C. 1985, c. C-46. Second, the Crown argues that the trial judge erred by relying on speculation and conjecture to make adverse credibility findings about the complainant.

[4] The trial judge did not make either of these errors. Therefore, the appeal is dismissed.

Background facts

[5] B.S.L. and A.B. had been in an intimate relationship. They had two children. By early 2021, their relationship had broken down. The couple was living apart.

[6] The respondent formally admitted at trial that he was bound by a probation order, which prohibited him from contacting A.B. and their children. The respondent also formally admitted that he and A.B. were previously in a relationship and that he was the father of A.B.’s children, C.D. and E.F.

[7] The Crown called one witness at trial, A.B.

[8] A.B. testified that the respondent had called her during the summer of 2021 to persuade her to allow him contact with his children. A.B. refused. A.B. testified that in response, the respondent threatened to kill her. A.B. also testified that the respondent called her multiple times asking her to write a letter to his probation officer granting him permission to see the children. A.B. refused.

[9] A.B. testified that a few days before Christmas, the respondent went to A.B.’s home with a friend to see the children. She testified that the respondent visited them and then left with his friend.

[10] Turning to the alleged sexual assault, A.B. testified that the respondent went to her home on December 8, 2021. She testified that after she had put the children to bed upstairs, she came back downstairs and the respondent had not left. He told A.B. that he wanted to talk. She testified that he started grabbing her arms. She described how he pulled her towards him as she pushed him off. She testified that he grabbed her waist, lifted her dress, and touched her underwear. She testified that he said words to the effect of, “Oh, you’re my wife, like do this.” She testified that she told him that “this is rape”, and he continued pulling her. She testified that he stopped when she began speaking loudly. She testified that he apologized. She asked him to leave. The respondent eventually did so.

[11] The Crown also relied on an audio recording that it argued captured the alleged sexual assault on December 8, 2021.

[12] At the outset of the trial, the defence agreed that, if the recording were authenticated by A.B., it would be admissible in evidence, but that the defence would be making submissions as to what weight should be given to it. In addition to direct evidence of the alleged assault, the Crown also wished to rely on certain statements made by A.B. during the recording for the truth of their contents because they were spontaneous utterances ( res gestae ). Defence opposed the admissibility of A.B.’s statements on this basis, but after an exchange with the trial judge, it was agreed that the complainant’s statements were admissible but that the defence would argue what weight should be given to her statements on the recording.

[13] The trial judge held a blended voir dire with respect to the audio recording. The audio recording was played during A.B.’s evidence. At several points, the recording was paused so that A.B. could narrate what was happening and being said. A.B. testified that the male voice belonged to the respondent. The Crown relied on A.B. to translate words being spoken from Lingala to English. The Crown did not call a translator.

[14] Although the trial judge made no formal ruling on the recording’s admissibility during the trial, it is plain from his colloquy with counsel during closing submissions and in the trial judge’s reasons for judgment that he admitted the recording but had significant concerns about its reliability and about the complainant’s description of what it recorded.

[15] The defence did not call any evidence.

Analysis

Standard of review

[16] On appeal, the Crown argues that the trial judge made errors of law. Errors of law are reviewed on a correctness standard: R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 18.

Did the defence questioning the complainant about whether the recording was taken on a different date constitute other sexual activity evidence under s. 276?

[17] On cross-examination, the complainant testified that she used her iPhone’s voice memo software to make the recording. The complainant also testified that the date of the recording was not clear from the actual audio. She stated that her phone had shorted and that when she went to check the recording, it was dated December 8. The Crown led no other evidence about when the recording was made. For instance, the Crown did not lead any evidence regarding the recording’s metadata.

[18] The Crown’s first ground of appeal arises from the following exchange between the complainant and the defence on cross-examination:

Q. It's - it's not clear what the date is from the actual audio?

A. No, because it happened on December - December 8th, because that's what my - when I had my phone, my like my phone shorted, I think, on the - on the - when I went to check, it said December 8th.

Q. Okay. It said December 8th?

A. Yeah.

Q. Okay. You've known [B.S.L.] for a long time, right, for...

A. Yeah.

Q. ...many years?

A. Yeah.

Q. Okay. It's possible that recording was taken on a different date?

A. No.

[19] The Crown argues that this exchange constituted other sexual activity evidence, within the meaning of s. 276(2), thus triggering the procedures set out in s. 278.93 and 278.94. I disagree.

[20] This ground of appeal turns on the proper characterization of the defence’s questions. The defence was testing the complainant’s credibility and reliability about the date of the recording, not seeking to adduce evidence that the complainant engaged in other sexual activity. It was evidence of the sexual activity charged – the suggestion was simply that the complainant was mistaken about the date.

[21] Subsection 276(2) does not apply to the limited questions put by the defence.

[22] The Crown argues that had it known that the defence would challenge the complainant’s credibility and reliability about the date of the recording, it could have led metadata evidence or amended or re-laid the information.

[23] But the purpose of s. 276 of the Criminal Code is not to help the Crown plug gaps in its case. The objectives of s. 276 are to protect the integrity of the trial process by striking a balance between the dignity and privacy of complainants and the right of accused persons to make full answer and defence. Section 276 seeks to eliminate the twin-myths, to encourage the reporting of sexual offences, and to exclude evidence which supports stereotypical reasoning: R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at paras 39 and 48. The defence’s brief line of questions about the timing of the recording did not run afoul these important objectives.

[24] Thus, I would not give effect to this ground of appeal.

Did the trial judge rely on speculation and conjecture to make adverse credibility findings about the complainant?

[25] The Crown argues that the trial judge erred in relying on speculation and conjecture to make adverse credibility findings about the complainant with respect to the date of the recording. The Crown also argues that the trial judge speculated that the recording was doctored. Finally, the Crown argues that the trial judge erred in making an adverse credibility finding about the complainant because of her delay in giving the recording to the police.

[26] The trial judge’s reasons disclose no legal error. In effect, the Crown invites this court to reweigh the trial judge’s credibility findings on appeal. That is not this court’s function on appeal. It was open to the trial judge on the evidence to be left with a reasonable doubt as a result of the complainant’s evidence.

The audio recording

[27] One of the core issues at trial was whether the recording was accurate and made on the date the complainant maintained it was. Because the Crown led no other evidence about the date of the recording, such as metadata, the only evidence the trial judge could consider was the complainant’s evidence. And because the male voice was speaking in Lingala for portions of the recording, the trial judge was also invited to rely on the complainant’s explanation of what the male person was saying on the recording. Her credibility and reliability were therefore central issues.

[28] In his reasons for decision, the trial judge noted that there was no metadata evidence associated with the recording adduced at trial. Because this was an electronic record, the trial judge analogized to R. v. Aslami, 2021 ONCA 249, 155 O.R. (3d) 401, and noted that the Court of Appeal cautioned trial judges about the need to rigorously evaluate an electronic record’s reliability. He noted that everything turned on the complainant’s evidence.

[29] The trial judge then addressed the complainant’s delay in giving the police the recording. He found her explanation for why she did not disclose the existence of the recording or play it for the police when she was first interviewed on January 4, 2022 to be “very troubling.” The complainant’s explanation was that she had not been asked. The trial judge noted that the complainant only told the police of the recording’s existence in March 2022, and the complainant only produced it to the police a couple of months before the trial, a year after the complainant told the police about its existence. This caused the trial judge to express concern regarding the provenance of the recording.

[30] In Aslami, the Court of Appeal cautioned, at paras. 11 and 30:

[11] This case demonstrates the risks associated with not paying adequate heed to the dangers that are associated with relying on text and other messages, absent expert evidence explaining how various pieces of software, or “apps”, can be used to generate these messages, and how reliable the resulting messages are in different respects. Put simply, it is too easy to use various pieces of software to create, or manipulate, messages such that they can appear to be from someone when, in fact, they emanate from an entirely different person. Similarly, the timing of the messages can be altered to suit a particular purpose.

[30] As I said at the outset, trial judges need to be very careful in how they deal with electronic evidence of this type. There are entirely too many ways for an individual, who is of a mind to do so, to make electronic evidence appear to be something other than what it is. Trial judges need to be rigorous in their evaluation of such evidence, when it is presented, both in terms of its reliability and its probative value. The trial judge did not engage in that rigorous analysis in this case. In fairness, the trial judge was not assisted by the prosecution in this task. The prosecution ought to have called expert evidence to address the issues that the evidence posed, but they did not.

[31] Aslami was about text messages and messaging software, not electronic recordings. But I need not resolve how broad a rule the Court of Appeal was articulating in that case. As I read the trial judge’s reasons, he simply relied on Aslami to instruct himself to rigorously evaluate electronic evidence in terms of its reliability and its probative value. Doing so was not an error of law.

[32] Although the Crown was not required to lead expert evidence about the recording, the result of the Crown’s trial strategy was that the only evidence about the date of the recording and the recording’s reliability came from the complainant. It was not an error for the trial judge to consider the complainant’s credibility in this regard.

[33] Finally, a fair reading of the trial judge’s reasons does not support the Crown’s contention that he speculated about the audio being doctored. Rather, the trial judge concluded that he had significant concerns about the complainant’s credibility with respect to what the audio recording was a record of and how it came to be made. Put otherwise, the trial judge concluded that the Crown did not discharge its burden in this regard.

Trial judge’s assessment of the complainant’s credibility

[34] A trial judge’s findings of credibility deserve particular deference on appeal: R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 81. Absent a reviewable error, it is not for this court to intervene in the trial judge’s assessment of the complainant’s credibility.

[35] Here, after considering the complainant’s credibility in respect of the audio recording, and its delayed disclosure and production to the police, the trial judge then considered the defence’s cross-examination of the complainant, canvassing certain inconsistent statements made by the complainant about the sexual assault. And, after appropriately cautioning himself about the frailties of demeanour evidence, the trial judge noted that the complainant was not always responsive on cross-examination.

[36] These considerations led the trial judge to express concern about the complainant’s credibility generally, and he concluded that he was left with a reasonable doubt.

[37] On appeal, the Crown relied on R. v. M.W., 2024 ONCA 499, to argue that the trial judge took a “piecemeal approach” to assessing the evidence. In M.W., at para. 6, the Court of Appeal concluded that the trial judge erred in considering the probative force of a video of the alleged sexual assault only after the trial judge concluded that the court could not rely on any of the complainant’s testimony.

[38] Here, the trial judge did not adopt a piecemeal approach to assessing the evidence. He properly considered the audio recording in the context of the evidence as a whole. Given that the complainant’s credibility was a central issue at trial, the trial judge did not err in focussing on this issue in his reasons.

[39] I would therefore not give effect to this ground of appeal.

Disposition

[40] The appeal is dismissed.

Justice Owen Rees

Released: December 13, 2024

COURT FILE NO.: 22-RD14743 DATE: 2024/12/13 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING Appellant – and – B.S.L. Respondent REASONS FOR decision on summary conviction appeal Rees J. Released: December 13, 2024