



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. N.P.,









2021 BCCA 25




Date: 20210114

Docket: CA46612

Between:

Regina

Respondent

And

N.P.

Appellant

Restriction
on publication: A publication ban has been automatically imposed under s. 110(1)
of the
Youth Criminal Justice Act
restricting the publication of
information that would identify a young person referred to in this judgment. A
publication ban has also been automatically imposed under s. 111(1) of the
Youth Criminal Justice Act
restricting the publication of information
that would identify a young person as having been a victim or witness. Both
publication bans apply indefinitely, unless the information is published by the
young persons under ss. 110(3) and 111(2), respectively, or the court has ordered
publication.

A
publication ban has been imposed under s. 486.4 of the
Criminal Code
restricting
the publication, broadcasting or transmission in any way of information that
could identify a victim or witness under 18. This ban applies indefinitely
unless otherwise ordered.




Before:



The Honourable Madam Justice Newbury

The Honourable Mr. Justice Hunter

The Honourable Mr. Justice Grauer




On appeal from:  An
order of the Provincial Court of British Columbia, dated
March 28, 2019 (
R. v. [N.P.]
, Cranbrook Docket 3834-1).

Oral Reasons for Judgment




Counsel for the Appellant

(via videoconference):



J.L. Martin





Counsel for the Respondent

(via videoconference):



N.G. Melling





Place and Date of Hearing:



Vancouver, British
  Columbia

January 14, 2021





Place and Date of Judgment:



Vancouver, British
  Columbia

January 14, 2021








Summary:

The appellant, N.P., was
convicted of sexual assault of his stepsister. N.P. submitted, and the Crown
conceded, that the judge erred by admitting Facebook messages between the complainant
and her father following the alleged assault as consistent statements which
reflected positively on her credibility. Held: Appeal allowed and new trial
ordered. The prior consistent statements of the complainant should not have
been entered into evidence or considered by the trial judge in assessing her
credibility or corroborating her testimony. Prior consistent statements are
presumptively inadmissible and no exception to this rule applied in this case.

[1]

NEWBURY J.A.
: The Crown has conceded that this appeal should be
allowed and a new trial ordered, and I agree with that disposition.

[2]

Mr. P was convicted of the sexual assault of B.M. At the time, he
was 15 years old. B.M. was his stepsister and was then age 16. B.M.
testified that at about 1:00 a.m. on July 24, 2018, the appellant and
B.M. were staying at the home of her paternal grandparents. Apparently they
were expected to sleep on the same couch. The two were at opposite ends of a
sectional; she was positioned on one end of the couch with her feet towards him
at the other end. She testified at trial that he began to rub her legs with his
hand. When she moved her legs away, he tried to touch her and [run] his hand
up her leg. (Reasons at para. 3.) He then crawled on top of her and
grabbed her breasts. She responded by repeatedly saying no and told him to
stop. He said, Then blow me and Ill leave you alone. When she refused, he
again grabbed her breasts and as she tried to move away, grabbed her by the
hips and pulled her back onto the couch. She testified that he pulled her
pyjama pants to her knees and inserted his penis into her vagina.

[3]

The appellant testified in his defence, agreeing with virtually all of
the foregoing, except that he denied touching B.M. sexually or at all.

[4]

The Crown entered into evidence a series of Instagram messages between
the appellant and B.M. In one these exchanges, which took place two months
before
the alleged offence, B.M. told Mr. P it was wack  i.e., absurd  for
him to try to smash her  i.e., have sex with her  given that he was her (half)
brother. His reply was, Of course I am Im 15 and your [sic] sexy. In his
testimony, the appellant explained these messages as being simply stupid and
the result of his being drunk at the time.

[5]

The Crown also sought to adduce into evidence some Facebook messages
between B.M. and her father
later in the morning of July 24, 2018
,
in which she complained of what had happened, in a manner that was, in the
trial judges words, consistent with what she testified to. (At para. 16.)
Details of these messages are set forth at para. 21 of the appellants
factum.

[6]

In an exchange with Crown counsel, the trial judge suggested that B.M.s
prior consistent statements, while not admissible for the truth of their
contents, were
admissible and could be used in assessing her credibility
,
on either the second or third branch of
R. v
.
W.D.
[1991] 1
S.C.R. 742. Defence counsel agreed that the Facebook messages could be
used to assess credibility, to the extent that it rebuts any sort of
suggestion of a ... recent fabrication. He continued, I could concede that,
to the extent that she hasnt made up some story later on. I would submit that
it would be  should be assessed for that limited purpose .... In fact, there
was no evidence that would have supported recent fabrication by B.M. of her
evidence.

[7]

No
voir dire
was held to determine the admissibility of the
consistent statements from Facebook.

Trial Judges Reasons

[8]

At para. 5 of his reasons, the trial judge correctly stated the
three prongs of
R. v. W.D
. On the first branch, he said he did not
believe the appellants denial of sexual contact and characterized Mr. Ps
explanation of the Instagram messages as not compelling. With respect to the
second branch of
W.D.
, the judge found that the appellants evidence did
not raise a doubt, and that:

He acknowledges in his evidence
that in sending an eggplant emoji and referring to licked he was asking B.M.
to perform a blowjob, that is to say, fellatio. It is consistent with B.M.s evidence
that on the couch he asked her to blow him. [At para. 13.]

[9]

Turning next to the third branch of
W.D.
, the judge said this:

... I turn to consider the balance of the evidence. I found
the evidence of B.M. to be credible and compelling. Indeed, with respect to the
surrounding facts, including opportunity, it was confirmed by [Mr. P].

Furthermore, the Instagram exchange between them, and to
which I have already referred, is consistent with what she alleges occurred
later in this assault. Other than [Mr. P]s denial being put to her, she
was not challenged or inconsistent in any way.

Lastly, in Exhibit 1, pages 2 to 7, the Facebook messages
between B.M. and her father later in the morning on July 24, 2018, she
complained to her father of what occurred, which was again consistent with what
she testified to.
While those

Facebook messages from her are
not proof of what occurred, they are consistent with her evidence and reflect
positively on her credibility
.

In conclusion, I accept the
evidence of B.M. that she was assaulted by [Mr. P] just as she described.
[At paras. 147; emphasis added.]

[10]

In the result, the appellant was found guilty as charged.

On Appeal

[11]

Statements consistent with a witnesss evidence are normally regarded as
self‑serving evidence and are presumptively inadmissible because they (i) lack
probative value and (ii) constitute hearsay when adduced for the truth of
their contents: see
R. v. Stirling
2008 SCC 10 at para. 5;
R. v. Dinardo
2008 SCC 24 at para. 36;
R. v. Ellard
2009 SCC 27 at para. 27;
R. v. M (E-H)
2015 BCCA 54 at para. 46;
and more recently,
R. v. Gill
2018 BCCA 275 at para. 65. As
S.N. Lederman, A.W. Bryant and M.K. Fuerst observe in
The Law
of Evidence in Canada
(5
th
ed., 2018) at §7.3, in addition
to the lack of probative value of such evidence, the most common rationale for
the rule is the risk of fabrication: no one should be allowed to create
evidence for him or herself. An exception historically existed in sexual
assault cases for recent complaints made by complainants soon after the
incident complained of, but that exception was abrogated by an amendment to the
Criminal Code
in 1983. (See now s. 275.)

[12]

There are several other exceptions to the rule but, in my view, none of
them is remotely applicable to this case. I have already mentioned that no
imputation of recent fabrication arises. The Crown suggested in its factum that
the exception known as narrative as circumstantial evidence  where out‑of‑court
statements made by a complainant in a sexual assault case may be used for the
limited purpose of helping the trier of fact to understand how the complainants
story was initially disclosed (
Dinardo
at para. 37)  might have
application, but I cannot agree. Cases in which it has applied have generally
involved witnesses who because of age, infirmity or similar circumstances are
unable to testify or have a particular difficulty beyond their control, in
testifying. In
Dinardo
itself, the complainant was young person with a
disability. In
R. v. G.C.
[2006] O.J. No. 2245 (C.A.), the
complainant was 8 years old. The Supreme Court in
Dinardo
approved
the reasoning of the majority in
G.C.
that her prior consistent
statements could be admitted, emphasizing at para. 39 that she had had
difficulty in situating events in time, was easily confused, and lied on occasion.

[13]

At the same time, the Supreme Court in
Dinardo
approved the Court
of Appeals conclusion in
G.C
. that the trial judge had
erred
in
admitting the
content
of the complainants prior consistent statements
to
corroborate
her testimony at trial. Both courts cited with approval the
observation of the Ontario Court of Appeal in
R. v. F.(J.E.)
(1993) 85
C.C.C. (3d) 457 that:

The
fact
that the statements were made
is admissible to assist the jury as to the
sequence of events from the alleged offence to the prosecution so that they can
understand the conduct of the complainant and assess her truthfulness. However,
the jury must be instructed that they are not to look to the
content
of
the statement as proof that a crime has been committed. [At 476; emphasis
added.]

[14]

Very recently, in
R. v. Langan
2020 SCC 33, the Supreme
Court adopted the reasons of Chief Justice Bauman, dissenting, reported at 2019
BCCA 467. The Chief Justice quoted with approval passages from
Gill,
including this:

The prior consistent statement
is
not admitted for the truth of its contents or as a form of self-corroboration
of the trial testimony of the witness
. The trier of fact also must not rely
on the statement to support the prohibited inference that repetition enhances
truthfulness. Rather, the probative value of the statement lies in the
inferences that can be drawn from the timing and circumstances of the
statement,
rather than the simple fact that the [witness] has said the same
thing before
 . . . [At para. 91; emphasis added.]

[15]

The situations in which the narrative exception may be relied upon,
then, are limited, and in any event such statements are not to be used for a
hearsay purpose  i.e., as a form of self-corroboration. (
Gill
at para. 76.)
No difficulty like that encountered in
Dinardo
or
G.C.
arose with
respect to the complainants testimony in the case at bar; nor was it contended
that the
timing or fact
of her complaint was of independent cogency in
assessing that testimony. It follows in my opinion that the prior consistent
statements of B.M. should not have been entered into evidence or considered by
the trial judge in assessing her credibility or corroborating her testimony. The
only relevance these statements could have had was to support the prohibited
inference that repetition enhances truthfulness. (
Gill
at para. 76.)

[16]

I also agree with the Crown that the curative proviso in s. 686(1)(b)(iii)
cannot properly be applied in this case. As Mr. Melling acknowledged, it
cannot safely be said that defence counsel made a tactical decision not to
object; and the trial judge gave sufficient importance to the Facebook evidence
to suggest that it did figure significantly in his reasoning.

[17]

In the result, I am satisfied that we have no choice but to allow the
appeal, and order that the case be remitted for retrial.

[18]

I thank counsel for their helpful submissions.

[19]

HUNTER J.A.
: I agree.

[20]

GRAUER J.A.
: I agree.

The
Honourable Madam Justice Newbury


