Trial judge misused prior consistent statement to bolster complainant's credibility
Jeffrey Milligan
In a recent case, the Ontario Court of Appeal underlined that it is an error to use a prior consistent statement of a witness to bolster his or her credibility.
The complainant, A.Y., met the appellant on a social networking app. The appellant described himself as a photographer and they agreed to meet at his apartment for him to take photographs of her. According to A.Y., after he took some photographs of her, the appellant made advances to her and she told him to stop. She testified that he agreed to stop, but soon pushed her to a bed and groped her. She tried to push him away, but could not overcome him. He tried to have intercourse with her and, realizing that she could not stop him, she ceased resisting his advances (but did not consent to sexual intercourse with him). After some ten minutes, he stopped. She went to the bathroom, angry, and permitted him to escort her to a taxi stand near his apartment. She went straight to her home.
The appellant gave a very different version of the events that took place after he took photographs of A.Y. at his home. He denied that he initiated any sexual contact at all. A.Y. kissed him, he said at his trial, and he was surprised and shocked by this. He told A.Y. that he had a girlfriend and reminded her that she told him that she had a boyfriend. She was angry when he rebuffed her advances. He took her to a taxi stand and heard nothing about an alleged sexual assault until about 14 months later.
The complainant sent an email to the police the day after she got home from the appellant's. She felt angry and blamed herself for putting herself in a position where the appellant could take advantage of her. She could not sleep. Early the next morning, she decided to report the assault by sending an anonymous email to the local police station. She did not use her usual email address, but instead used one she had not used in years.
She described the attack in some detail in the email and her narrative was consistent with her testimony at trial. She referred to the assailant as "Jay"-the alias he used online — and provided his telephone number. She asked that the police contact her and do something about the assault.
She sent the email the morning after the alleged assault. The police, unfortunately, did not check their mailbox for "a few months" and did not respond for some five and a half months. In their reply, they asked that she come forward and identify herself so they could commence the investigation. A.Y. testified that she initially checked regularly for replies after she sent the email, but she stopped doing so after she did not get a reply. She checked her mailbox over 6 months after the police sent their reply and read it at that time.
A.Y. was with her boyfriend when she read the police email. She became upset and told her boyfriend what had happened. He persuaded her to go to the police and she did so. The appellant was charged some 14 months after the incident.
A.Y. and the appellant were the only witnesses at the trial. The trial judge recognized that the outcome of the trial depended on his assessment of the credibility of the complainant and the appellant and he directed himself that he must evaluate the evidence in accordance with the principles expressed in
R. v. W. (D.), [1991] 1 S.C.R. 742, 1991 CarswellOnt 80 (S.C.C.).
He first considered the appellant's evidence and found that it was incredible and did not leave him with a reasonable doubt. Turning then to the complainant's evidence, he set out why he believed her evidence.
One of the reasons he accepted her evidence was that her decision to send the email and not follow up was consistent with the behaviour of a victim who was upset and ashamed of her own gullibility.
In his discussion of the last of the three reasons he believed the complainant, he had this to say: "most importantly, I find A.Y.'s email sent contemporaneously with the events, to be corroboration of her evidence".
He referred to the email six times in his reasons and at one point he said that the email " . . . did not differ in any significant way from the evidence that [A.Y.] gave at this trial". The Crown counsel argued at trial that the complainant's version of events had been consistent throughout, beginning with her description of the assault in her email and culminating in her testimony at trial.
The email was introduced into evidence during the examination-in-chief of the complainant. She read the document in its entirety into the record and it was made an exhibit. There was no objection by trial counsel for the appellant and, unfortunately, no indication by counsel or the trial judge of the purpose for which the email was tendered or of any limitations on its use.
The Ontario Court of Appeal held that the trial judge was quite entitled to use the anonymous sending of the email and the failure to follow up as circumstantial evidence that was consistent with A.Y.'s testimony about her state of mind after the incident. Whether the contents of the email were true is irrelevant to this evidentiary use.
But, notwithstanding the arguments of the Crown, the trial judge went further than this. He used the email in a manner that was impermissible. He used it to bolster the credibility of the complainant in that it afforded "corroboration of her evidence". In
R. v. Dinardo, 2008 CarswellQue 3451, [2008] 1 S.C.R. 788 (S.C.C.), the Supreme Court held that a trial judge's reference to a prior consistent statement as a "form of corroboration" of the complainant's evidence constituted reversible error. "Corroboration" refers to evidence from a source other than the witness whose evidence is challenged that confirms the veracity of the evidence of that witness. Because the email did not come from a source independent of A.Y., it could not be corroboration. Prior consistent statements that are consistent with testimony are generally inadmissible to bolster the witness's credibility.
The Court of Appeal found that the trial judge used the email improperly because there was no indication on the record by the trial judge or by either counsel at any time that the email could not be used for the truth of its contents or that it could not be used to support A.Y.'s credibility simply because its contents were consistent with her evidence. In fact, as was noted above, the Crown counsel unfortunately argued that the consistency in A.Y.'s accounts of what happened supported her credibility. He emphasized that A.Y. "never wavered" from her description of the events in the email to her evidence at trial. Moreover, the judge did not explain or clarify what he meant by "corroboration".
Because the trial judge's findings of credibility were tainted by an improper use of the email, the appeal against conviction was allowed and a new trial was ordered.
R. v. Zou,
2017 ONCA 90, 2017 CarswellOnt 1157 (Ont. C.A.)