CITATION: R. v. O.L., 2026 ONSC 3194

COURT FILE NO.: CR-25-102003-00AP

DATE: 2026-06-15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

His Majesty the King

N. Soehner, counsel for the Respondent

Respondent

• and -

O. L.

S. C. Hutchinson, B. Chung, counsel for the Appellant

Appellant

HEARD: May 22, 2026

REASONS FOR JUDGMENT

The Honourable Justice M. Valente

I. Overview

1This is an appeal brought by the Appellant, O. L., against conviction imposed on May 5, 2025 by M. Sopinka, J. of the Ontario Court of Justice.

2Following a five-day trial, the Appellant was convicted of one count each of assault, contrary to section 266 of the Criminal Code, R.S.C. 1985, c-C. 46 (the “Code”), sexual assault contrary to section 271 of the Code, and forcible confinement contrary to section 279(2) of the Code, for offences committed on February 14, 2023.

3The Appellant advances two grounds of appeal.

4First, the Appellant submits that the Trial Judge erred by admitting and relying on certain text messages sent by the Complainant to her friend under the narrative as circumstantial evidence exception to the rule again prior consistent statements.

5Second, with respect to the offence of forcible confinement, the Appellant submits the Trial Judge failed to consider an essential element of the offence; specifically, that the confinement be for a “significant period of time”.

6The parties are in agreement that should I find in favour of the Appellant’s first ground of appeal, all three of the convictions ought to be quashed and a new trial be ordered before the Ontario Court of Justice. This agreement follows logically because the Trial Judge’s reasons on the forcible confinement conviction are grounded in acceptance of the Complainant’s testimony in relation to the assaults.

7Should I accept the Appellant’s first ground of appeal, the Respondent further concedes that the curative provision of section 686(1)(b)(iii) of the Code has no application to the convictions at issue.

II. The Evidence at Trial

8The Appellant and Respondent also agree with the summary of the trial evidence that follows.

9Three witnesses testified at trial: the Appellant, the Complainant, and the Appellant’s roommate, E.C.

10The Appellant and the Complainant were university students in the summer of 2022 when they met over social media. They shared a mutual interest in technology and artificial intelligence. They met for the first time in January 2023 when the Complainant invited the Appellant for lunch. Their relationship developed and they met several times thereafter in January and February 2023. Ultimately, the Appellant asked the Complainant, and she agreed, to go out with him for Valentine’s Day dinner.

11The Complainant testified that the Valentine’s dinner was not intended to be a date, but rather, that she and the Appellant agreed that it would be a “friend date” to a cheap restaurant known for shawarma and poutine called “Lazeez”. They also made plans to do coding after dinner or watch Silicon Valley on TV.

12The Appellant testified that he knew that the Complainant did not want to “date date” and that she wanted the Valentine’s Day dinner to be just a “friend date”. Nonetheless, he interpreted the Complainant’s statements to him as not foreclosing the possibility of casual sex. The Appellant also testified that they did not plan to have dinner at Lazeez, but rather at a nicer Italian restaurant called Ennio’s and the Complainant told him to wear something nice.

13In their text message exchange between February 11 and 14, 2023, the Appellant and the Complainant discussed their dinner plans. The Appellant suggested going to an Italian pasta restaurant and sent the Complainant a link to Ennio’s. Although he later suggested going to Lazeez, the Complainant wanted to have pasta. In their text exchanges, the Complainant told the Appellant to dress up for dinner and asked him to confirm the restaurant that they were going to so that she might dress appropriately. He responded in his text that they were going to eat at the “pasta house”. In their texts, the parties also discussed getting flowers for each other. The Appellant suggested that they watch Silicon Valley after dinner and the Complainant agreed that was a “SLAY PLAN”.

14The Complainant testified that when the Appellant arrived to take her to dinner, she found it “a bit weird” that he had dressed up and had flowers. She also testified that when they arrived at Lazeez, the Appellant told her that he had actually made reservations at a “better place” and that she was surprised by this change of plans. The Complainant’s trial evidence was that the dinner was good, she was pretty happy and that she sat on the same side of the table as the Appellant.

15In his trial testimony, the Appellant stated that when they arrived at Lazeez, he joked about ordering food there but later made clear to the Complainant that he was “just joking” and they were getting pasta as the Complainant had requested. He testified that at Ennio’s, he sat on a bench seat and the Complainant sat down next to him.

16After dinner, the Complainant agreed to go to the Appellant’s apartment to watch Silicon Valley. The Complainant testified that the Appellant repeatedly tried to put his arm around her shoulders which shocked her; he then put one hand on her leg and the other on her waist and under her shirt. The Complainant testified that she told the Appellant to stop but he did not. At one point, the Appellant’s hand got close to her breast, but he did not touch it, and at another point, he asked her for casual sex, which she refused.

17The Complainant testified that after she declined the Appellant’s request for csex, he became emotional about his family and former girlfriend and started to cry. When she tried to hug him, the Appellant kissed her neck and asked her if she ever had a hickey, after which she pushed him away.

18Following the assault, the Complainant testified that the Appellant went to the washroom which gave her “some time to think”. She stated she wanted to leave but did not want to “make a big scene” or “confront him”.

19When the Appellant returned, her evidence was she went to the washroom to text a friend. She was unable to recall exactly when she went to the washroom but testified it was “a long time after” the Appellant’s assaults of her – “maybe 30 minutes or 40 minutes after”. During that time the Complainant explained in her evidence that she underwent a “mental state change”, and specifically, the Complainant testified that she “settle[d] in a state of…very low feeling” and that she had “a drop in energy after a while” as opposed to earlier when she felt both “agitated” but “pretty in control”. She also explained that while in the washroom, she “was not mad anymore”, did not “have energy to fight anymore” and just wanted to “try to get out discretely”.

20The relevant extract of the text message exchange between the Complainant and her friend is reproduced below:

Complainant: 02/15/2023 12:23AM

How do I leave

I finally connected to wifi

He’s trying to make me have casual sex

Friend: 02/15/2023 12:24AM

WHERE TF ARE YOU

Complainant: 02/15/2023 12:24AM

[O.L]’s house

Friend: 02/15/2023 12:24AM

SEND ADDRESS

Complainant: 02/15/2023 12:24AM

I’ll just go home myself

Idk address

Friend: 02/15/2023 12:25AM

why haven’t u left then

ok then leave

Complainant: 02/15/2023 12:25AM

Cuz he’s crying abt his ex

And very vulnerable there’s no way I can just walk out

Friend: 02/15/2023 12:25AM

he didnt try anything right

Complainant: 02/15/2023 12:26AM

He tried a lot

I’ll try to go home

Ttyl coming out of the washroom now

Friend: 02/15/2023 12:27AM

HE’S DOING THAT ON PURPOSE

JUST LEAVE PLEASE

Friend: 02/15/2023 12:35AM

can you share your location

Complainant: 02/15/2023 1:07AM

I just got back

Friend: 02/15/2023 1:08AM

u good?

Complainant: 02/15/2023 1:08AM

Yeah

21After she came out of the washroom, the Complainant testified that she let the Appellant walk her home.

22With specific regard to the offence of forcible confinement, the Complainant testified that when she attempted to stand up from the couch to leave, the Appellant pushed her down “maybe five times” within a five-minute period, telling her she needed to stay because of his trauma.

23For his part, the Appellant testified that at his apartment, and without his roommate at home, he and the Complainant watched TV and “at one point [they] were both looking at each other and [he] said, ‘I think I really like you’, and [he] leaned in for a kiss”. He testified that he thought that there was “good chemistry” and that “overall the night was going really, really, really, really well” but the Complainant leaned away, apologized and said that she was not ready for a relationship.

24The Appellant testified that he was embarrassed and distraught at misreading the situation and being rejected. His evidence was that he had an “emotional breakdown” and thought about his ex-girlfriend and parents. While crying, the Complainant comforted him. He tried to break the awkwardness of the situation by asking the Complainant “in a joking tone” whether she wanted to have “casual sex”. He testified that when he was crying on her left shoulder, that she hugged him around his shoulders and that he hugged her back. His evidence was that he did not interpret this interaction between them as a sexual advance and otherwise denied touching the Complainant in a sexual way.

25The Appellant further testified that while he was crying, the Complainant went to the washroom.

26The Appellant messaged his roommate, E.C., to ask him not to return home because he was embarrassed about crying.

27Later, when the Complainant said she was going to go, the Appellant testified that he asked her if she could stay longer to comfort him through his emotional breakdown. Eventually, however, he walked the Complainant home.

28E.C., the Appellant’s roommate, testified that on February 13, 2023, the Appellant asked him if he could have the apartment to himself on Valentine’s Day evening until midnight. E.C. agreed. On E.C.’s way to the apartment, the Appellant asked him to further delay his return. As a result, instead of going home, E.C. read a book by the stairwell near the apartment. At around 1:00am, E.C. testified that he heard the Appellant and a woman leave the apartment.

29In relation to his roommate’s evidence, the Appellant testified that it was “not uncommon” for he and E.C. to ask each other to have the apartment to themselves when friends came over. The Appellant’s evidence was he wanted privacy for he and the Complainant to get to know each other.

III. The Trial Judge’s Reasons for Judgment

30In her reasons for judgment, the Trial Judge undertook an extensive review of the trial testimony, identified the main issue to be one of credibility and instructed herself on the applicable governing legal principles, after which she considered the evidence of both the Appellant and the Complainant.

31The Trial Judge found the Appellant to be “an articulate and thoughtful witness” who “provided his evidence-in-chief clearly and forcefully denied the inappropriate conduct alleged by” the Complainant. However, the Judge of First Instance also found that “there were several areas of the Appellant’s evidence where he was extremely reluctant to admit facts that were obvious on the record or by application of logical reasoning”. In particular, the Trial Judge found the Appellant’s “evidence regarding his desire to have [E.C.] absent from the residence initially, and to continue the duration of his absence, as the night progressed to be confusing and illogical”.

32According to the Trial Judge’s assessment of the Complainant’s evidence, “she testified in a thoughtful and literal manner. Her answers were at times lengthy and occasionally indirect” but the Trial Judge determined “that fact as diligence in attempting to provide as much information and explanation as she could”. While the Judge of First Instance recognized that the Complainant was mistaken about elements of her narrative, in the Trial Judge’s view, these issues did not detract from the “veracity or reliability of her evidence on the salient issues”. In particular, the Trial Judge acknowledged that the Complainant’s trial testimony regarding the parties’ Valentines dinner plans conflicted with certain of the text message exchanges between she and the Appellant regarding the same topic. However, the Trial Judge found that the Complainant’s trial testimony respecting the dinner plans was “not unreasonable” … “especially since she had not seen the text messages for two years, and she testified that during this time she was messaging many people over multiple platforms numerous times a day”.

33The Trial Judge next turned her mind to the admissibility of the text messages that were exchanged between the Complainant and her friend while the Complainant was in the washroom of the Appellant’s apartment (the “Text Messages”).

34The Trial Judge rejected the Respondent’s argument that the Text Messages were admissible for the truth of their contents under the spontaneous utterance exception to the rule against hearsay in reliance on the Court of Appeal’s decision in R. v. R.A., [2024] ONCA 696. In that recent decision, the Court cautioned against the admission of res gestate statements where “the only evidence necessary to ground the pre-requisite of the exception comes from the very person who made the statements” (from the Trial Judge’s Reasons for Judgment).

35On the other hand, after considering the Court of Appeal’s direction in R. v. Khan, 2017 ONCA 4114 (“Khan”), the Trial Judge accepted the Crown’s submission that the Text Messages were admissible pursuant to the narrative as circumstantial evidence exception to the rule against prior consistent statements. Specifically, the Trial Judge found that the Text Messages “can assist the trier of fact in evaluating the credibility of the Complainant’s in-court testimony by providing evidence of the sequence and timing of events, and the emotional state of the declarant in a time frame closely aligned with the allegations”.

36Having admitted the Text Messages into evidence, and having considered them, the Judge of First Instance concluded:

In addition to the cogent and consistent nature of [the Complainant’s] testimony, I find that the text messages that she sent to [her friend] following the alleged sexual assault provide evidence of the timing and sequence of events consistent with her testimony and evidence of her emotional state (see R. v. Khan, (2017) ONCA 114 at paras. 31-34 and 43-44 and R.A., (supra) at para. 55). It is clear from the messages that [the Complainant] was conflicted and concerned about how to extricate herself from the situation in which [the Appellant] had suggested casual sex and had “tried a lot”. This emotional state is confirmatory of the events she alleges took place with [the Appellant] beyond his evidence of one attempted but rejected kiss. Ultimately, this evidence assists in evaluating the credibility of [the Complainant] as the fact and timing of her emotional state as reflected in the messages is corroborative of her version of events.

37The Trial Judge’s reasons for entering a conviction which respect to the offence of forcible confinement are succinctly stated in the following paragraph:

…I find that [the Complainant’s] evidence as to what occurred on the couch when she stated that she wanted to leave constituted the requisite elements of forcible confinement. She stated her intention to leave, and physically tried to get up from the couch, and [the Appellant] pushed her back down, stating that she could not leave due to his trauma. The actions of [the Appellant] prevented [the Complainant] from moving from place to place, were without lawful authority and without [the Complainant’s] consent. Clearly from the words spoken, [the Appellant’s] intention was to deprive [the Complainant] of movement. The fact that during other parts of the evening [the Complainant] chose to stay to defuse the situation, or to deal with [the Appellant’s] significant emotional breakdown, does not negate the fact that her evidence of the events on the couch constituted the offence of forcible confinement, if even for only a relatively brief duration.

IV. Position of the Parties

38The Appellant submits that the Trial Judge erred in using the Text Message as substantive corroboration of the Complainant’s in-court testimony. The Appellant submits that Khan strictly prohibits the use of prior consistent statements, like the Text Messages, for substantive corroboration or because they show consistency. In support of this submission, the Appellant relies on the Trial Judge’s finding that the Text Messages “provide evidence of the timing and sequence of the events consistent with [the Complainant’s] testimony” and that the Text Messages could be used as “confirmatory of the events she alleges took place” and “corroborative of her version of events”.

39The Appellant further submits that while the Judge of First Instance appears to rely on the Court of Appeal’s direction in Khan that a prior consistent statement might be used as evidence of “the emotional state of the complainant at the time of the utterance” which could “assis[t] the trial judge in evaluating the credibility of the complainant’s in-court testimony”, in this instance because the Complainant testified that her mental state changed from the time of the assaults to the time of sending the Text Messages, it was impossible for the Text Messages to be used as evidence of the Complainant’s emotional state at the time of the assaults to support the credibility of her account of the assaults.

40In so far as the offence of forcible confinement is concerned, the Appellant submits that an essential element of the offence requires proof that for any significant period of time the complainant was coercively restrained or directed contrary to their wishes, so that they could not move about according to their own inclination and desire (see: R. v. Palmer-Coke, 2019 ONCA 106 (“Palmer-Coke”), at para. 29). It is the position of the Appellant that the essential element of a “significant period of time” is critical to attract liability for the offence. However, not only did the Trial Judge not consider this requirement in her decision, but more importantly, she described the confinement as being “for only a relatively brief duration”. This finding, the Appellant submits, does not reach the requisite standard for conviction.

41The Respondent submits that the Trial Judge was very much alive to the concern of admitting the Text Messages as a prior consistent statement. The Trial Judge specifically addressed the dangers of “bootstrapping” with the admission of the Text Messages. The Respondent submits, however, that the admission of the Text Messages is permissible within the allowable frame of narrative evidence to assist with the sequence of the events. The Respondent submits it is not the content of the Text Messages that was considered as corroborating evidence but rather the timing and form (i.e. the abbreviated words and sentences; block lettering) of the Text Messages.

42The Respondent further submits that the Text Messages have an independent cogency to the extent that they were properly considered as evidence of the fact that a statement was made, the time of the statement and the statement’s form. It is also the Respondent’s position that the absence of a defence of recent fabrication of the assaults does not mean the Text Messages could not be admitted and relied upon for narrative purposes.

43The Respondent submits that Khan opened the door for the Text Messages to be used as evidence of the emotional state of the Complainant at the time the messages were sent to assist the trier of fact’s evaluation of the credibility of the witness’ in court testimony. It was therefore available to the Trial Judge, in her assessment of the Complainant’s credibility, to consider her finding of the Complainant’s emotional state at the time of the Text Messages in relation to the Complainant’s emotional state as described in her viva voce testimony.

44The Respondent also submits that the Trial Judge did not err in finding that the offence of forcible confinement had been made out. There is no minimum period that is required. To be significant, the time period need not be lengthy, just meaningful. The Court of Appeal in R. v. Ally, 2022 ONCA 558 dispelled the notion that a conviction for forcible confinement requires proof that the confinement occurred for a “significant period of time”. Brief periods of time, as found by the Trial Judge, can meet the standard of meaningful confinement.

V. General Legal Principles

45Pursuant to section 686 (1) of the Code, appellate courts can set aside a verdict when (a) the verdict is unreasonable or cannot be supported by the evidence; (b) there was a wrong decision on a question of law; or (c) on any other ground where there was a miscarriage of justice.

46It is an error of law to admit and use prior consistent statements for an impermissible purpose. When issues of this nature are raised, the standard of review is correctness (see: R. v. TWS, 2020 ABCA 157, at para. 39, leave to appeal to SCC denied; R. v. Castro Wunsch, 2023 ABCA 160 (“Castro Wunsch”) at para. 8).

VI. Prior Consistent Statements

A. Legal Principles

47Prior consistent statements are presumptively inadmissible. There is more than one rationale for this rule, including that prior consistent statements (a) lack probative value; (b) are often self-serving; and (c) are hearsay (see: R. v. D.K., 2020 ONCA 79, (“D.K.”), at para. 34).

48The overwhelming danger is that the trial judge or jury may improperly use the mere repetition of a statement as a badge of testimonial trustworthiness (see: D.K., at para. 35). As the Court of Appeal made clear in Khan, “such evidence cannot be used for the prohibited inference that consistency enhances credibility, or the incorrect conclusion that the simple making of a prior consistent statement corroborates in-court testimony” (at para. 41).

49There are, however, a number of exceptions to the rule against prior consistent statements.

50Prior consistent statements may be admitted where they are “necessary to the unfolding of the events or narrative of the prosecution” (see: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 (“Dinardo”), at para. 37).

51Prior consistent statements may also be admissible under the narrative as circumstantial evidence exception. Trotter J.A. in D.K. makes clear that “[a]dmissibility on this basis … does not hinge on the mere repetition of the same information” (at para. 38). Rather as Hourigan J.A. observes in Khan, the prior consistent statement is not to “corroborate the evidence of the witness but to provide the surrounding circumstances and context to evaluate the credibility and reliability of the witness’s in-court testimony” (at para. 39). In this way, the prior consistent statement has “independent cogency, and is not used merely to support the testimony of the witness by duplication” (see: Khan, at para. 39). Put another way “[i]t is the ‘declaration part’ of the prior consistent statement that is relevant and leads to permissible circumstantial inferences” (see: Khan, at para. 40).

52In Khan, given the circumstances in which the complainant made her prior statement to the police, the Court of Appeal found that the complainant’s prior consistent statement had probative value beyond mere repetition. “It was evidence of the sequence and timing of events and the emotional state of the complainant at the time of the utterance, and assisted the trial judge in evaluating the credibility of the complainant’s in-court testimony” (see: Khan, at para. 44).

53Because the line between the permissible and impermissible uses of prior consistent statements is a fine one, as noted by the Supreme Court of Canada in Dinardo at para. 37), the Court of Appeal in D.K. emphasized the importance of trial judges articulating how the prior consistent statement might assist in assessing the credibility of a witness’s in-court testimony (at para. 44).

B. Analysis

54Although the Trial Judge cautioned herself with respect to the inherent dangers of prior consistent statements and admitted the Text Messages on the basis of a recognized exception to the rule against their use, I respectfully find that the Judge of First Instance failed to articulate how the Text Messages assisted in assessing the trustworthiness of the Complainant’s testimony. I postulate that the Trial Judge failed to provide this explanation, as directed by the Court of Appeal in D.K , because the fact of the Text Messages and their timing in the sequence of events along with the emotional state of the Complainant at the time of their delivery did not factor into the Trial Judge’s credibility assessment; rather it was the content of the Text Messages that the Trial judge considered to confirm the very events that were in dispute.

55I reach this finding based on the Trial Judge’s conclusion, without any assessment of the Text Messages’ “independent cogency”, that the messages provide evidence of a “sequence of events consistent with [the Complainant’s] testimony”, including the allegation that the Appellant “had suggested casual sex and had ‘tried a lot’”, both of which were key features of the sexual assault allegation at trial. The Trial Judge also found, without any analysis of how the Text Messages assisted in her assessment of the Complainant’s credibility, that the Complainant’s “conflicted and concerned” emotional state in the messages is “confirmatory of the events she alleges took place with” [the Appellant] and “the fact and timing of her emotional state as reflected in the messages is corroborative of her version of events”.

56Based on these findings of the Trial Judge, I cannot accept the Crown’s submission that it was not the content of the Text Messages that was considered as corroborating evidence but rather the timing and form of the Text Messages.

57In my view, it is not sufficient to simply refer to the Text Messages as evidence of the timing and sequence of events and the emotional state of the Complainant without providing an explanation as to how each assists in evaluating the Complainant’s credibility. Without this explanation, in my respectful view, would be to create the appearance of compliance with the Court of Appeal’s direction in Khan while falling into the dangerous trap of using the prior consistent statement for substantive corroboration of the witness’s in-court testimony or to demonstrate consistency. Without focusing on how the Text Messages help in the credibility assessment, I respectfully find that the Trial Judge lost sight of the principle that the Text Messages cannot be used to corroborate a witness’s evidence, but only to “provide the surrounding circumstances and context to evaluate the credibility and reliability of the witness’s in-court testimony” (see: Khan, at para. 39).

58The trial judge in Castro-Wunsch (2021), ABQB 337, made the same error as the Trial Judge in the matter before me. There, the trial judge rejected the complainant’s text messages to her friend as admissible res gestae but admitted the messages under the narrative as circumstantial evidence exception to the rule against prior consistent statements. The Alberta Court of Appeal found the trial judge’s admission of the text messages as an error because instead of using the messages to provide context to evaluate the complainant’s credibility of her in-court testimony, the Trial Judge used the text messages as substantive corroboration:

The trial judge concluded that the text messages were of assistance because they conveyed: the complainant’s “fear, confusion, and disbelief” about what had happened or was happening; her desire to leave the situation; and “most importantly” the fact that she “did not subjectively consent to what was happening at the office that day”: Castro-Wunsch at para. 271. Despite her hearsay ruling that the statement could not be admitted “for the truth of their contents (i.e. that she was upset and scared, that she did want help, [and] most significantly, that Mr. Castro-Wunsch had sexually assaulted her)” (Castro-Wunsch at para. 265 [emphasis in original]), the trial judge plainly read some or all of the complainant’s text messages as truthfully conveying the same things she said during her testimony. In this way, the trial judge relied on the text messages for the truth of their contents, erroneously allowing them to corroborate the complainant’s testimony. (see: Castro-Wunsch, at para.33).

59Where the credibility of the witnesses is of the utmost importance, as in this case and in most sexual assault cases, the misuse of the evidence in my opinion is fatal.

60In fairness to the Trial Judge, however, distinguishing between the permissible and impermissible uses of prior consistent statements, particularly when applying the narrative as circumstantial evidence exception is a challenging endeavour. Our Court of Appeal acknowledged this reality in D.K. at para. 44 as did the Alberta Court of Appeal in Castro-Wunsch at para. 35. Notwithstanding this admitted difficulty, the error cannot be cured in this instance.

61While I have found that the Trial Judge’s misuse of the Text Messages “as a badge of testimonial trustworthiness” (see: D.K., at para. 35) is sufficient to allow the appeal, I have also concluded that the Trial Judge misused the Text Messages to determine and rely on the “emotional state” of the Complainant from another perspective.

62The Court of Appeal’s direction in Khan is that prior consistent statements may provide evidence of the emotional state of the witness at the time of the utterance and assist the trier of fact’s evaluation of the credibility of the witness’s in-court testimony. In this instance, however, it is my respectful view that the Trial Judge lost sight of the Court of Appeal’s guidance that emotional state evidence is relevant only to the extent it reveals something about the witness “at the time of the utterance” (see: Khan, at para. 44), and not at some prior or subsequent time.

63In this case, the Complainant’s evidence belies any suggestion that the Text Messages convey a relevant emotional state that is supportive of the credibility of her account of the alleged assaults. The Complainant’s testimony is that she experienced a “mental change” between the time of the alleged assaults and going to the washroom some 30 or 40 minutes later when she sent the Text Messages to her friend. The Complainant provided detailed evidence how her emotions changed from being angry and agitated, but in control, to a point of “very low energy” and feeling “helpless” and “powerless”.

64Given the Complainant’s own evidence that her emotional state changed from the time of the assaults to the time of sending the Text Messages, I respectfully conclude that it was untenable in any event for the Trial Judge to use the Text Messages as evidence of the Complainant’s emotional state at the time of the alleged assaults. The Text Messages might only be used to determine her emotional condition when the messages were sent; a point in time that, based on the circumstances of this case, is irrelevant to an evaluation of the Complainant’s in-court testimony.

VII. Essential Element of Forcible Confinement

65In light of my finding in favour of the Appellant’s first ground of appeal and the agreement of the parties in that respect, I find it unnecessary to consider the Appellant’s second ground of appeal that the Trial Judge erred to consider that the confinement must be for a “significant period of time” to support a conviction under section 279(2) of the Code.

Disposition

66For all the aforementioned reasons, I respectfully find that the Trial Judge erred by admitting and relying on the Text Messages under the narrative as circumstantial evidence exception to the rule against prior consistent statements. The appeal is therefore allowed, and the convictions are set aside. The matter is remitted back to the Ontario Court of Justice for a new trial before a different justice.

Justice M. Valente

Released: June 15, 2026

CITATION: R. v. O.L., 2026 ONSC 3194